Guest post by Brett Trout, author of BlawgIT
Background
Petitioners Bernard Bilski and Rand Warsaw filed their Brief For Petitioners last week in what could be this decade’s watershed patent ruling. The patent at issue relates to a method for managing risk when buying or selling energy commodities. The law at issue is whether a process must be tied to: 1) a machine or 2) a transformation of a particular article into a different state to be patentable (the “machine-or-transformation”/“MOT” test). The Brief breaks the case down into five issues:
1) No New Limits On §101
Petitioners note §101 covers “any … process” and argue court’s limits on patentable subject matter, should not exceed limits outlined by Congress. Citing Benson and Flook, Petitioners note the Supreme Court has twice refused to limit §101 to the MOT test. Processes must, they argue, be subject to the same patentability requirements (and no more) than the other categories of subject matter. Petitioners enlist caselaw to attack the machine requirement of the test. They enlist Judge Rader’s dissent in Bilski to attack the transformation requirement which “links patent eligibility to the age of iron and steel as a time of subatomic particles and terabytes.”
Petitioners argue that Congress drafted the language of §101 broadly enough to encompass emerging technologies and the CAFC’s inability to apply its MOT test to “information-age processes” demonstrates the test is anathema to Congressional intent. Pitting the Supreme Court’s flexibility in interpreting patent cases against the CAFC’s rigidity, Petitioner’s analogize the MOT test with the CAFC’s KSR “teaching, suggestion or motivation test,” which the Supreme Court unanimously rejected.
2) Conflict with §273, State Street and J.E.M. Ag Supply,
In 1999, Congress enacted 35 U.S.C. §273, which insulates entities from patent infringement liability based on using a method of conducting business, if the entity reduced the method to practice at least one year before the effective filing date of the patent and the patent contains claims the method would otherwise infringe. Since §273 of the Patent Act specifically recognizes patent protection for business methods Petitioners argue §101 cannot be read to exclude those same claims. Petitioners note the legislative history of §273 provides “[a] method is any systematic way of accomplishing a particular business goal” with “[t]he State Street decision [bringing the financial services] industry to the forefront of cutting edge patent law protection.”
In J.E.M. Ag Supply the Supreme Court upheld the validity of plant patents, basing its decision on the PTO’s history of issuing patents on plants and Congress’ failure to amend the Patent Act to prevent the practice. Petitioners analogize the facts underlying J.E.M. Ag Supply with the PTO’s grant of more than 15,000 patents in the “business methods” technology group. Weilding J.E.M. Ag Supply, Petitioner’s argue, settled PTO practice and Congressional non-interference mandate a reversal of the Bilski decision.
3) Disruption of Public Policy and Settled Expectations
Petitioners argue the MOT test constitutes legislation from the bench, straying from the CAFC’s prior technology neutral position to one of anti-technology Luddism. Acknowledging the problem of vague or trivial patents, Petitioners assert an unfettered §101, along with §112, §102 and §103 are far more better suited to vet patents than the MOT test. Petitioners cite Judge Newman’s dissent in which she notes the MOT test diminishes incentives available to new enterprises and disrupts settled expectations of those who rely on the law. Festo is also cited for the proposition that disrupting settled expectations destroys legitimate property expectations.
4) Practical Applications
In lieu of the MOT test, Petitioner’s suggest the more flexible “practical application” test of Funk Bros. Petitioner’s argue the Supreme Court finds a principle is “practically applied,” and therefore patent-eligible, when the principle is applied (1) to a new and useful result; 2) in a particular apparatus or structure; or 3) in a particular art or process. Under this test, a method or transformation is sufficient, but not necessary, to make a principle patent-eligible. Petitioners analogize practical and patentable applications of mathematical formulas, natural laws, industrial processes, chemicals and manufacturing processes.
Petitioners point to the historical rejection of the English “manner of manufacture” in favor of the broader Constitutional “and useful Arts” as support for protection of processes being a seminal Constitutional right. Diehr is cited for the proposition that processes have historically enjoyed patent protection as a form of “art” as that term is used in the 1793 Patent Act.
5) The Bilski Patent Claims Comport With §101
Petitioners reiterate the expansive nature of the language of §101, the admonition not to overrule Congressional intent by placing unnecessary restrictions on §101, and the availability of the Supreme Court’s “practical application” test as an alternative to the MOT test. Petitioners argue Claim 1 of the Bilski patent falls within the broad reach of §101 and embodies a practical application of using an intermediary to manage consumption risk costs associated with buying and selling a commodity. Even if Claim 1 fails the “practical application” test, Petitioners argue the much narrower and detailed Claim 4 is patentable for its inclusion of a mathematical formula, practically applied to a useful result.
Conclusions
Though well argued, Petitioners’ Brief buries its most persuasive argument. Arguments relating to the scope of §101, concordance of various statutes, general principles of patent law and application of particular claims to the law are all the true grist of every patent attorney’s mill. The issue with the most far-reaching and potentially catastrophic consequences is the disruption of public policy and settled expectations. Even the first U.S. patent ever granted covers a process.
It is no surprise the CAFC, left with applying flexible formulations to mercurial facts, constantly strives for hard and fast measures against which to adjudicate patent cases. Sweeping aphorisms (while simple to understand and apply) risk excluding entire technologies. Moreover, invalidating decades of case law and established practice undermines faith in our entire patent system. If there can be no reliance that patents granted today will endure, all patents immediately become less valuable and infringers are more apt to challenge them in court.
Disputed issues of patentability must be settled. Any decision of this magnitude must take into account rules regarding statutory interpretation, stare decisis and the application of the law to the facts. The decision should also take into account the tens of thousands of current inventors whose patents may be made worthless by this decision. Of course the value of the property interest at issue is not a pivotal factor in cases such as these. The public policy underlying reliance on the fairness and settled expectations under the law however, not only for past inventors, but for future inventors as well, is a factor of critical import. While simple rules and bright lines make resolving patent disputes easier, surrendering fairness for simplicity achieves neither end.
No. That you and your ilk refuse to allow amendments to indicate that a method is performed by a processor even though such is obvious, if not literally expressed in the application.
“Duuuuuuh that’s the point I’m trying to get through to you. ”
That your invention was obvious at the time the invention was made? Fine, whatever, have a 103 over your own admission instead. I’d still keep the 112 1st in place on the off chance that you’re mistaken about the claim being unpatentable under 103.
“Tell you what though Les, next time you get a rejection like that, simply argue that it was obvious, at the time the invention was made, to one of ordinary skill, that it could be performed on a computer. See how well that goes over k?”
Duuuuuuh that’s the point I’m trying to get through to you.
Remember the juxtaposition of the ridiculous assertion that its obvious to combine the teaching of 6 documents, but not obvious or otherwise clear that a method claimed 3 years ago could be carried out on a computer?
Next time you’re looking up obvious, scan up the page a bit for obtuse.
“—-A patent need not teach, and preferably omits, what is well known in the art—.””
This doesn’t say that you don’t have to claim a statutory invention. Anyone telling you otherwise is out of the gourd.
”
Mean, at a minimum, that if it is obvious that a method is carried out on, with or in a commpuuuuuuter, that such is support for a claim amendment, even if there is no literal word searchable discussion of the fact in the application.”
Not necesssaaaaarrrrrriiillllyyyyy. If you disclosed your invention as being broad enough to encompase more than it operating on a commmmmpppppuuuuuutttteeeerrrr then you may not have disclosed the invention with the necessarily specificity to establish you possessed that invention at the time of filing. And I for one am sure as hel not going to turn that into a reverse obviousness analysis for you.
Tell you what though Les, next time you get a rejection like that, simply argue that it was obvious, at the time the invention was made, to one of ordinary skill, that it could be performed on a computer. See how well that goes over k?
explain and elaborate, Malcolm. some explanation beyond “totally bogus.” I am not saying that I disagree with you, just want to learn your reasons.
“If no one has attempted to solve the problem before, there is no evidence as to how one of ordinary skill would solve the problem,”
Totally bogus.
Regarding a claim being obvious if anyone who attempts to solve the problem will arrive at the same solution:
while I don’t disagree that that would indicate that the claim is in fact obvious, I don’t see how it can be realistically applied as a basis for determination of obviousness. The examiner’s job is to show that a claim is obvious based on evidence. If no one has attempted to solve the problem before, there is no evidence as to how one of ordinary skill would solve the problem, so how can an examiner make a case without relying on “uh, well, it seems pretty obvious to me”.
“In all that sht you went out of your way to quote it didn’t say one gd thing about obviousness. I cracked more books before I hit 6th grade than you probably will in a lifetime.”
Well, you should have actually read them after you cracked them. If you would get out of –“examiner” word search mode– and read the whole sentences in context and extract some meaning from them you might see that these sentences:
“(“The test of enablement is whether one reasonably skilled in the art could make or use the invention from the disclosures in the patent coupled with information known in the art without undue experimentation.”).
—-A patent need not teach, and preferably omits, what is well known in the art—.”
Mean, at a minimum, that if it is obvious that a method is carried out on, with or in a commpuuuuuuter, that such is support for a claim amendment, even if there is no literal word searchable discussion of the fact in the application.
“And without that patent, there would have been far less incentive to develop
alternative or improved codecs”
Let me be the first to say “f codecs”. Stupd sons of guns made those things such a PITA. We don’t need “alternative” codecs, we need standardization for our codecs, if anything. However, the point about alternative solutions is, normally a good thing.
I really don’t give 2 shts if your codec makes the picture .00000000001 sharper for the same amount of storage space or whatever trivial nonsense comes out of the hundreds of them. What I care about is being able to watch the movie. Sacrificing the second for the first is ridiculous. I watch videos using the very first codecs and enjoy them just as much as the brand new divx encoded ones.
Gimme an S
Gimme an T
Gimme an A
Gimme an N
Gimme an D
Gimme an A
Gimme an R
Gimme an D
Gimme an I
Gimme an Z
Gimme an A
Gimme an T
Gimme an I
Gimme an O
Gimme an N
What’s that spell? Standardization.
I’m not even sure what enters people’s minds when they’re using a nonstandard codec. Could it be “Gee, I’d like to make sure that half the people who want to watch this movie can’t even though I gave them the movie?”
If you are a codec developer, consider that feedback.
If “*anyone* who attempts to solve it [the problem] will likely come up with
the same procedure,” then it should fail a 102/103 test and not be patentable (even for the first person who solves it).
Assuming that software is to be patentable (which I am in favor of), then it appears from your excellent posting that (a) the examiners need special training and education and (b) there needs to be better access to the prior art.
Dan B. – Thank you for your explanation. Yes, it should be a legislative
debate and not a legal one. I had missed that point, since it was the State
Street decision that changed much of the status quo, and not a new act from
Congress. I suppose I was envisioning the Supreme Court changing that
decision.
Noise above Law – Sorry, I think you’re misunderstanding my position. The
law is largely a mystery to me, so I may indeed be clueless, but I am
interested in increasing my understanding of the legal viewpoint. My
viewpoint is “This law is defective.” The legal view (including patent
attorneys) seems to be “This is the law. Here’s how we can use it.” At
IPWatchdog, Mr. Quinn makes no secret of his view that software should be
patentable subject matter, and I have no reason to doubt his interpretation.
That IS the law, and I’m not claiming it isn’t.
In fact, there are a few software patents which are good ones. The
Fraunhofer-Gesellshaft MP3 patent, for example, promoted a great deal of
progress in numerous scientific fields as well as business opportunities.
And without that patent, there would have been far less incentive to develop
alternative or improved codecs. So I’m not claiming that *all* software
patents should be abolished.
My main objection to software patents lies in how two of the five
patentability requirements are applied: novelty and nonobviousness. Far too
many software patents are granted on things which are neither. Very often,
writing software is much more like solving a puzzle than inventing something
completely new. In most cases, the first person to “invent” a piece of
software is simply the first person to attempt to accomplish a particular
task. That means there’s no prior art, and it’s nonobvious only because no
one’s asked that particular question before. Like Mr. Larsen, I have
independently reinvented a couple of famous algorithms myself (flood fill
and the Bresenham line algorithm). Most good programmers have done the same
thing. Yet most of those famous algorithms would certainly have been
considered novel and nonobvious enough to be patented under the current
rules. They shouldn’t be.
Because if you can patent that sort of “invention”, the next time someone
asks the same question, he’s forbidden from getting the same answer. It’s
like saying “Unscramble this Rubik’s cube, but you can’t do it by arranging
the corners first. Or the edges.” Yes, for the first person to do it, the
solution was novel and nonobvious. But that doesn’t mean that it should be
patented, because *anyone* who attempts to solve it will likely come up with
the same procedure. Most software is like that, only worse, because one
large program may incorporate hundreds of similar “inventions”.
But back to my main point. I make my living writing software. Given the way
they are issued and used today, I see software patents as a threat, not a
benefit. To me, the question is whether software patents promote progress or
hinder it. I see a hindrance, and I’d like to see it changed. As Dan B.
pointed out though, changing it would be a legislative task. The current
debate seems to be largely a question of what area and degree of hindrance
is allowed.
“Thank you, 6, for the telling insights into your personality.”
yw, now go ahead, don’t be bashful, let us all know about how your world got flipped, turned upside down. Take a minute, just sit right down.
“I will be 100% honest with you, as a youth I was more enamored with the dystopia, but as I grew older I realized why I very much prefer the opposite in nearly every respect.”
Thank you, 6, for the telling insights into your personality.
Curious you don’t seem to know the difference between criminal punishments depriving citizens of their freedom, and in government sponsored civil harassment schemes. Schemes which deprive citizens of their freedom when they are used, rather than when they aren’t used as in the former case. The general gist is, go with whichever path is “less evil” and causes the least harm. And depriving people of their freedom is the lesser of the two evils. Depriving people of their ability to deprive other people of their freedom is also the lesser of two evils.
I’m not even sure how people like yourself get brainwashed into a mindset that leads you to have alternative views. Views which your little “contrast” posts reveal that you have. I was just learning about “Nietzche and the Nazi’s” last night in a new instant watch flick on netflix… lol. But seriously, are you born with these views, or is it something you had to study to acquire? Were you once a normal American kid, full of visions of freedom throughout your life etc. etc.? Or did you have a vision of a state/corporate run dystopia? I will be 100% honest with you, as a youth I was more enamored with the dystopia, but as I grew older I realized why I very much prefer the opposite in nearly every respect.
“Applicants failure to do what? Anticipate that the rules would be changed 3 years in the future, when the patent office bothered to begin examining the applicants application, and in deference to the office’s whining about applications being too long, left out discussion of machine implementations that would be obvious to those of skill in the art once the method was disclosed since the invention was a method and methods are clearly listed in the statute as patentable on an equal footing with other classes of patentable subject matter?”
Look man, if they fail they fail. There’s no hope for these kind of folks.
”
You really should crack that book once in a while homie.”
In all that sht you went out of your way to quote it didn’t say one gd thing about obviousness. I cracked more books before I hit 6th grade than you probably will in a lifetime.
“This is why it doesn’t really matter *why* crappy claims die, as long as they die together, in large numbers. If a few allegedly “good” inventions get caught in the grinder, so be it. It’s not the end of the world.”
Malcolm Mooney
2009
Since my previous post disappeared, and my later ones also won’t post, please just go look up “Godwin’s Law” on Wikipedia.
From the same article:
“… there is a tradition in many newsgroups and other Internet discussion forums that once such a comparison is made, the thread is finished and whoever mentioned the Nazis has automatically “lost” whatever debate was in progress.”
Comparing patent claim rejections to the guilt or innocence of a human being is about as honest as comparing the proposed health care reform bill to the Holocaust.
“It is better that ten guilty persons escape than that one innocent suffer.”
William Blackstone
“It is better that ten patentable applications be rejected than that one crappy one issue.”
Malcolm Mooney
“It is better to risk saving a guilty man than to condemn an innocent one.”
Voltaire
“It is better to risk rejecting a worthy patent application than to issue a crappy one”
Mooney
NAL – “NWPA,My apologies for omitting a well deserved comment on your postings.The MM-trollbot line is indeed clever”
NWPA “Broje where did you get the claim for my MM-trollbot?”
A triad! Kinky. David Crosby would be proud.
Les “Applicants failure to do what? Anticipate that the rules would be changed 3 years in the future”
Many of us are familiar with Les from his “defend any crap at all cost” comments on the 12:01 Tuesday blog.
But the above quote is a bit much. We’ve seen this before. My friends, whenever you hear someone say “nobody could have predicted” it’s a good chance that someone is trying to cover their axx. In fact, Bilski (or something like it) was very predictable, just as KSR was.
Either the PTO learns how to examine crappy applications, or the courts are going to fashion tools to clean up the mess. This is why it doesn’t really matter *why* crappy claims die, as long as they die together, in large numbers. If a few allegedly “good” inventions get caught in the grinder, so be it. It’s not the end of the world. It’s the end of a brief period during which the patent system was turned on its head by applicants’ relentless attempts to patent abstractions and information in order to “make a fortune off the Internet.”
Decepticons are a subset of “Transformers,” btw.
The good ones are Autobots.
JDaily “Another common objection is that patent duration is a lifetime in computer science. There are two major counterarguments: First, if that is true, then the patents will become worthless as they age”
Uh … no. You are ridiculous.
“Second, there is nothing special about computer science. Other fields like biotech and materials science also move very quickly.”
With respect to biotech, there is a big difference: the time and cost of developing, testing and marketing are huge. In contrast, a skilled 8th grader can write “movie recommendation” software and sell it online in less than a day. Particularly when the biggest proponents of software patenting are on the record saying that all software concepts are enabled and so they need to be described only functionally, this is a huge distinction and an important one. It’s such an obvious distinction, in fact, that the failure to recognize it whiffs of insincerity.
Yes, the title is a little off. What I think is funny though is that Bilski is subtly being referred to as a Decepticon, which may or may not be an insult. Personally I route for the bad guys sometimes. Just kidding =). I must say the Bilski brief was very well put together.
“The title doesn’t make sense to an 1980s Transformers fan.”
It should be Autobots v. Decepticons.
Whatever.
broje,
Not to be hyper-critical, but you forgot to include that your method is a method on a computer (one that has a really big computer brain).
Or am I beign gratuitous? Honestly.
Broje where did you get the claim for my MM-trollbot? I requested non-publication of the application.
You did forget the dependent claim though:
2. The social networking method of claim 1, further comprising:
erasing memory for each new post.
Welcome to the puppet show broje.
What’s really sad is the identity of the man behind the curtain.
1. A method for social networking, the method comprising:
navigating to Patently O;
identifying a post that details a recent decision by a Court, including at least one of SCOTUS or the CAFC, in which a claim was found to be unpatentable;
posting under a primary pseudonym, including:
(a) crowing victoriously that another “crap claim” has been slain by the forces of righteousness;
(b) spouting something inane about certain types of technology not being patentable subject matter on 103 obviousness grounds;
(c) chastising the Court for not going far enough;
(d) predicting that eventually the Court will get it right and then everyone will see that you were right all along;
navigating to Patently O again and posting another comment under another pseudonym that mocks anyone that disagrees with the comment posted under the primary pseudonym; and
posting yet another comment under the primary pseudonym agreeing with the other comment in a smug, self congratulatory tone while continuing to taunt all others.
If patent law is a tax, then bald infringement is a far worse tax…
In a product market where there is a likelihood of the rise of natural monopoly for an enabling technology, say for video recorders or wireless transmission coding technology; if company A is working feversishly to solve a problem and succeeds first, then every step company B takes down the road thereafter will lead to an eventual inefficiency even if B “wins” and A fails.
It is a far more efficient capital distribution model to grant a patent to A, which in a rational scenario, should release B to efficiently pursue other developments. Sure there may be patent battles down the road between A and B, but it would be far less of a loss then, say, dumpsters full of Betamaxes…
Further, Posner notes that, with businesses being risk averse, a regime without patent rights, e.g. one that might lead to total losses for the “loser” in a product market dominance battle, would foster an environment of underinvention and too little risk taking by companies.
Is this so hard?
If you think the courts and USPTO are struggling with business method patents, wait until they face something really new, like “social networking” patents.
250% per year growth in filings over the past five years. link to bit.ly (Now that’s an explosion.)
+2,000 currently on file. link to bit.ly (+4,000 if you take into account 18 month delay and nonpub requests?)
Only about 100 issued so far. link to bit.ly (Can you say “examination backlog”?)
NWPA,
My apologies for omitting a well deserved comment on your postings.
The MM-trollbot line is indeed clever, as MM is always quick to accuse others of trolling, yet epitomizes that behavior (much like other comments such as gratuitous posting, and posting with integrity(NOT)). I had hoped that by my adding the “ignorance is bliss” module, you would have recognized the inherent approval, but I really should have given you more credit.
I applaud your contributions. Please continue to add your wit to the boards.
I think in your title you were attempting to be clever by using “Transformers” vs. Decepticons. Maybe because one of the issues is transformation for statutory subject matter.
However, Decepticons are also Transformers,
so your title is like saying “Humans vs Iranians”.
The title doesn’t make sense to an 1980s Transformers fan.
“”its not oooobvioussss daaaat it was did by a commmmpuuuuuter.”
Obviousness has nothing to do with WD homie. ”
MPEP 2164.01
Any analysis of whether a particular claim is supported by the disclosure in an application requires a determination of whether that disclosure, when filed, contained sufficient information regarding the subject matter of the claims as to enable one skilled in the pertinent art to make and use the claimed invention. The standard for determining whether the specification meets the enablement requirement was cast in the Supreme Court decision of Mineral Separation v. Hyde, 242 U.S. 261, 270 (1916) which postured the question: is the experimentation needed to practice the invention undue or unreasonable? That standard is still the one to be applied. In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988).
Accordingly, even though the statute does not use the term “undue experimentation,” it has been interpreted to require that the claimed invention be enabled so that any person skilled in the art can make and use the invention without undue experimentation. In re Wands, 858 F.2d at 737, 8 USPQ2d at 1404 (Fed. Cir. 1988). See also United States v. Telectronics, Inc., 857 F.2d 778, 785, 8 USPQ2d 1217, 1223 (Fed. Cir. 1988) (“The test of enablement is whether one reasonably skilled in the art could make or use the invention from the disclosures in the patent coupled with information known in the art without undue experimentation.”).
—-A patent need not teach, and preferably omits, what is well known in the art.—- In re Buchner, 929 F.2d 660, 661, 18 USPQ2d 1331, 1332 (Fed. Cir. 1991); Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1384, 231 USPQ 81, 94 (Fed. Cir. 1986), cert. denied, 480 U.S. 947 (1987); and Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1463, 221 USPQ 481, 489 (Fed. Cir. 1984).
You really should crack that book once in a while homie.
Noise Above the Law wrote:
>>Dan B and James Daily, I thoroughly enjoyed our posts today. Thank you.
>>Bill Richardson and Christopher Larsen, You are completely clueless.
>>6, you have supplied your own rope
Hey what about me? What’s my rating? Also, please rate my MM-trollbot as well. I’m trying to work the kinks out of him, but the goal is to annoy intelligent people.
“”First of all, not all claims CAN be so amended.”
I’m aware, that’s the applicant’s failure. We’re talking about applicant’s that do not fail. ”
Applicants failure to do what? Anticipate that the rules would be changed 3 years in the future, when the patent office bothered to begin examining the applicants application, and in deference to the office’s whining about applications being too long, left out discussion of machine implementations that would be obvious to those of skill in the art once the method was disclosed since the invention was a method and methods are clearly listed in the statute as patentable on an equal footing with other classes of patentable subject matter?
paleeeze
“There are 2523 patents with the exact phrase “method on a computer.” Are you saying that all these examiners who allowed these patents were stoopid?”
Nah, they just wanted to go home and were just fine with letting that go. I know how they feel. 🙁 You’re the on inferring that they’re stoopid. That isn’t entirely unreasonable though I will grant you. They could be.
Btw, the very small number indicates just the opposite, that the vast majority of people submitting that language were caught by the PTO. I wouldn’t doubt it if a good 50000 hadn’t been sent in. So, on the whole, 5% or so getting out isn’t horrible. Besides, claims like “… and executing the method on a computer.” might not be as bad. Although if that was all of the MoT, I’d rip them a new Bilski sized behind orifice. Plus, did you look only in claims? They can spout out whatever bs they like in the spec.
FYI- I do. As an examiner I also know that there has never been a method “on” a computer. Methods aren’t “anywhere”, they exist everywhere and nowhere at the same time, though they are sometimes performed or executed some place.
Ok ok, I waxed a little poetic.
“Some how they took a wrong turn in Bilski”
They were trying to set forth an easy-to-apply test which could be used. Unfortunately, it is not all that easy to apply and it also is legislating from the bench IMHO.
I would recommned reading HUMAN INGENUITY: A NOVEL APPROACH FOR PATENTING ALGORITHMS, 22 GGU LAW REV. 455 (1992). I would say that the Federal Circuit nearly copied the standard for determining patentable subject matter pursuant to 35 USC section 101 set forth therein back in 1999. Some how they took a wrong turn in Bilski.
“lololololololol Bilskied. A method “on” a computer lolololololololol. Did you put the method on top of the computer or on bottom? The right or the left? Where do the “method steps” go? On top of your head?”
There are 2523 patents with the exact phrase “method on a computer.” Are you saying that all these examiners who allowed these patents were stoopid?
FYI — as an examiner, you should know that “on” does not necessarily mean “physically on” (i.e., the book is one the table).
Bob1: Hey, Bob, I just developed this new method for hedging risk. Just tell me how much of a commodity you want to buy, then the past average price for the last 5 years.
Bob2: Wow, that’s great Bob1! Ok, $100,000 and $50.
Bob1: Ok, so multiplying $100,000 x $50 by my new method yields $5,000,000. So your hedge risk is $5,000,000! Oh, by the way Bob2, I am totally patenting this method!
Bob2: Great! SO, ummm…Bob1, now what do I do with that number you calculated using your soon-to-be-patented method?
Bob1: Well, you apply it of course!
Bob2: Ohh…
“A method on a computer comprising detecting the movement of user input device.”
lololololololol Bilskied. A method “on” a computer lolololololololol. Did you put the method on top of the computer or on bottom? The right or the left? Where do the “method steps” go? On top of your head?
Jes us, learn 2 draft that is pathetic.
omfg, my other response eaten by the type pad.
short version: dan b you’re evil, and dmb. Also, how do you know what hours I was in the office today? R u spying on me? Why are you spouting nonsense arguments taking up time “I” could be spending on legitimate lawyer’s arguments that are in line behind you? Attorneys take note of your fellow attorney’s behavior.
Noise, reading comprehension is now a weakness? <3 for u lol.
“A method on a computer comprising detecting the movement of user input device.”
OMFG ROLFMAO, a method “on” a computer. Ok, ok, I’m going to try to restrain myself. Someone else take care of the little fish.
Your claim preempts every possible method for detecting the movement of a user input device using a computer including using a passive sonar array to detect the sound of the user device sliding on your desk or 1001 other things that probably aren’t supported by your specification.
I don’t think any examiner would have any difficulty stating an abstract principle and requiring compliance with the machine or transform test.
Noise:
I hope enjoyed meant in a good way. If so, then you’re welcome.
Just Visiting:
If the PTO can’t identify the judicial exception, how can the PTO justifiably argue that the claim is attempting to pre-empt all applications of the judicial exception.
How can I argue that my contains no fundamental principal and thus the MoT test does not apply. You’re making the argument that all process are abstract ideas by default as I believe the PTO was trying to do to my claims. However, Bilski DOES NOT SAY THAT. Bilski clearly says, that MoT applies to process claims applying a judicial exception.
A method on a computer comprising detecting the movement of user input device.
What is abstract about that? The computer has to use some algorithmic program to detect the motion of a mouse. That’s about a concrete as can be. Not according to my examiner. Bilski she cries, Bilski!
“I’m always correct don’t bother, don’t even bother.”
There’s nothing I enjoy more than that call from some junior examiner an hour or so after I called the SPE.
Junior – “After a review of the application, if you change ‘the’ to ‘said’ in claim 34, line 5, the case will be in condition for allowance.”
Me – “Thanks. Feel free to make the change and send out the Notice of Allowance. It was a pleasure doing business with you.”
LOL
Heavy activity on the boards today, but a couple of quick points:
6, you have supplied your own rope (and your greatest condemnation) yet again with:
“I think I understand the law “so well” because I know how to read. Furthermore, because it has been my foremost hobby for the past 2 or 3 years. And to be honest, I don’t think I understand it “so well”, I think my understanding is precisely mediocre.”
Your ability to read, to read in context, and to read and understand are perhaps your greatest WEAKNESSES. Couple these weaknesses with your colossal ego and your shield of persistent ignorance and it is no wonder that even examiners have stated on the boards how loathed you are.
Bill Richardson and Christopher Larsen,
You are completely clueless. To steal from my friend breadcrumbs, patent attorneys enjoy the perspective of two worlds; engineering and legal. The statement “Unfortunately, there is a dichotomy between the mindset of engineers and that of lawyers.” and the logic of your positions are built on loose sand. Your positions were thoroughly dismantled over at the IPWatchdog going back at least to last November. Your anti-patent agenda will not fly.
Dan B and James Daily,
I thoroughly enjoyed your posts today. Thank you.
“In Bilski, the court specifically found that minimizing risks by entering into hedging contracts is an abstract idea.”
This should give a hint as to how futile it is to ask the examiner to identify the “abstract idea”. The above statement is just some high level summary of what Bilski’s claim actually said. It is not going to be difficult task for the examiner to summarize the point of your invention at a high enough level to conclude that the machine/transformation test ought to be applied.
As long as you are dealing with art rejections at the same time, go ahead and stall on the 101. But you aren’t really advancing the prosecution ball if you put off addressing the machine or transformation test.
“I wonder what the trend is if we start at 1996? 28%?”
Not quite that high, 19% CAGR. But as you’ve mentioned, you have to be careful about cherry picking years. If you go 2000 – 2004, the growth is actually negative.
James Daily, your comment posted on Aug 06, 2009 at 03:36 PM is excellent
6:
The entire patent system is about financial motivation. That’s the reason it was created–a financial incentive for inventors to disclose their inventions. Perhaps your 2-3 years of hobby law didn’t cover that. And while my company is financially motivated, my salary is the same whether we obtain patents or not.
Secondly, intentional deception. I’m not quite sure how I am deceiving the examiner. He has rejected under 101 claiming the my claims were non-statutory subject matter because they did not meet the MoT test. In Bilski, the court said the MoT test determines whether a process pre-empts a fundamental principal. All I am ASKING for is for the USPTO to tell me what the abstract idea is.
In Bilski, the court specifically found that minimizing risks by entering into hedging contracts is an abstract idea. Then they applied the MoT test. I’m simply asking for the Examiner to do the same. Simple request.
Also, I love how being an examiner is just a hobby to you! And wow, you’ve been reading about patent law for a whole three years now as your hobby? That’s great.
All patent attorneys take note. The reason the PTO is so backed up is because examiners such as 6 have spent their entire day reading blogs and responding to them. Your tax dollars and filing fees hard at work!
“The thing is that the limitation to a general computer is no more meaningful than saying you can perform the calculations on a piece of paper to transform it to a concrete expression.”
One key difference between the computer implementation and the pencil & paper implementation is that the computer implementation is actually useful. For most computer science algorithms, working them out with pencil and paper is completely impractical.
I said above, another key difference is that by only claiming an exclusive right to the use of the algorithm as implemented on a computer, the patentee has left the algorithm itself, as a mathematical idea, to the public domain. Thus, computer scientists are free to research it in the abstract using pencil & paper and their own minds.
“It’s like saying you could patent the addition of one plus one because a computer does it instead of your brain.”
No, it is not like that at all. It’s like saying you could patent a new, nonobvious algorithm or datastructure as implemented on a computer because the practical application of that algorithm on a computer is useful in a way that the abstract idea is not.
“The science (or art) that is computer
programming is to arrange those myriad known techniques into a pattern to accomplish a specific goal. Mr. Larsen’s analogy of patenting computer programs to patenting legal arguments is quite apt.”
This is akin to saying that you cannot assemble a patentable device from a family of CMOS circuits.
“That is correct. ”
I’m always correct don’t bother, don’t even bother.
“Business method patents have only been growing explosively (i.e. 15% per year) since 1970. link to bit.ly“
The thing about that graph is that we could take a different point on it and make a different trend line. For instance, let’s leave out years 1978- and suddenly the trend line fits just as well at 20%. And even a 1% increase in the rate of growth is pretty big. I wonder what the trend is if we start at 1996? 28%?
Les, you shot back with “1 a archaic : a constructed thing whether material or immaterial.”
I’d actually found machine defined as “a device consisting of fixed and moving parts that modifies mechanical energy and transmits it in a more useful form.” This comes from the less authoritative Free Online Dictionary link to thefreedictionary.com but provides a definition that comports with how I believe the term is most commonly used. At least it isn’t prefaced by “archaic.” You M-W definition is almost the same as the definition for “apparatus” which is “a set of materials or equipment designed for a particular use.” So why call out “machine or apparatus” if they are basically the same? As I read “machine” a machine is one example of an apparatus.
Regardless, I did not come here to argue definitions but to point out that “particular machine or apparatus” is hopelessly vague as a bright line, and contrasting differing definitions for “machine” does nothing to diminish that assertion. And that’s just a start. What does “tied” mean? And then there’s the transformation branch…
“I think I understand the law ‘so well’ because I know how to read.”
One would never guess that based on how sh!tty you write.
“I think my understanding is precisely mediocre.”
Don’t be so hard on yourself, your understanding is phenomenally mediocre.
“And yours apparently.”
That is correct. You are a legend. In my mind and many others. All of us have dealt with the likes of you many times. The true hard core, bad a$$ examiners who have never lost at the Board, or even allowed an application. Funny thing though is after one call to your SPE or Director you become more of a myth.
LOL
“But that does refute the point of my comment, which is simply to note the indisputable fact that the explosive interest in the patenting of abstract business and accounting concepts is a recent phenomenon.”
You are right, I was engaging in a bit of hyperbole to make a point.
Business method patents have only been growing explosively (i.e. 15% per year) since 1970. link to bit.ly
“Why do examiners such as “6” think they know and understand the law so well just because they sat in on Solicitor Chen’s workshop on how to reject patent applications?”
I think I understand the law “so well” because I know how to read. Furthermore, because it has been my foremost hobby for the past 2 or 3 years. And to be honest, I don’t think I understand it “so well”, I think my understanding is precisely mediocre. I just think that there are a lot of people in my interwebs (I think they’re inside the tubes) who have much less of an understanding. And I also think that these same people, absent a financial reward for misunderstanding the law would have a much better understanding. That is, they’re smart, they’re so smart that they can tell that they stand to gain by miscomprehension, and spreading that miscomprehension around. This isn’t even necessarily a conscious effort on their part, it may be entirely subconscious.
Dan B is a particularly curious case of the exact phenomena referred to above. Do you see how his financial interest fuels his misunderstanding? In his case this misunderstanding appears to be entirely intentional, with an intent to decieve a poor hapless examiner. But, like I mentioned, this behavior doesn’t necessarily always manifest itself in such a manner.
“Right. Like one phone call to your TC Director isn’t going to bring your little re-opening merry go round to a grinding halt.”
Don’t bother says: I agree with you 6, I have nothing to threaten you with, but you on the other hand can threaten me with thousands of dollars of costs.
“You’re a legend in your own mind. ”
And yours apparently.
James Daily wrote:
>>But now suppose one adds the limitation that the algorithm be implemented on a computer. Suddenly two things have happened.
The thing is that the limitation to a general computer is no more meaningful than saying you can perform the calculations on a piece of paper to transform it to a concrete expression. Putting it down on paper makes it easier to communicate, implementing it in a computer probably is faster than doing it in your head…but its still an a mathematical concept. Its like saying you could patent the addition of one plus one because a computer does it instead of your brain.
Comparing pace of change in Biotech or Materials science and claiming it is anything vaguely related to duration of a software “generation” when discussing patent duration is underestimating software’s pace of change by orders of magnitude. There is simply no comparison between industries that spend years and millions or billions of dollars to a single idea and software that is composed of thousands or millions of ideas to create an aggregate product as a unique expression.
Regarding the Curry-Howard Correspondence, which was brought up (as it so often is) to prove that software is inherently unpatentable:
Suppose one discovers a new, more efficient algorithm for, say, simulating fluids on a computer. It is true that the algorithm is ultimately a mathematical proof and it can be performed entirely within the human mind. This looks like an abstract, mathematical idea, which would be excluded under 101.
But now suppose one adds the limitation that the algorithm be implemented on a computer. Suddenly two things have happened. First, the invention is now a practical application of an abstract idea. Second, that limitation means that computer scientists can still study the algorithm in its pure mathematical state without running afoul of the patent.
The requirement that the algorithm be implemented on a computer is sufficient to remove software from the realm of abstract ideas and into the realm of patentable useful processes. It also has the beneficial side effect of keeping the algorithm itself in the public domain.
Another common objection is that patent duration is a lifetime in computer science. There are two major counterarguments: First, if that is true, then the patents will become worthless as they age, maintenance fees will go unpaid, and the patents will be abandoned. Dennis has written at least one post on the cumulative percentage of patents that go abandoned over time, and it is non-trivial. There is no reason to believe, without evidence, that software patents are immune to this trend.
Second, there is nothing special about computer science. Other fields like biotech and materials science also move very quickly. What’s more, all of the fundamental algorithms and data structures are in the public domain. Quicksort, for example, was invented in 1962. Hash tables date back to at least 1957. No fundamental algorithms or data structures have been blocked by patents.
Furthermore, with few exceptions (e.g. prime number factorization), it is known that we have either the optimal algorithms (e.g. n log n sorting algorithms) or very close to the optimal algorithms (e.g. polygon triangulation) for most fundamental computing tasks. Thus, it is often impossible to invent a significantly better algorithm. For the cases where it is possible, doing so would represent such a monumental stroke of genius that a patent would be a worthy reward and worthwhile incentive (e.g. an efficient way to transform an NP-Complete problem into a polynomial-time problem).
Dan,
So it does not say, apply MoT to all processes??
Where’s the link for that?
Les wrote:
>> Patenting an airplane is like patenting and algorithm. It makes it impossible to practice the profession of making airplanes.
No, the equivalent for airplanes would be patenting the use of Drag and Lift so that you simply could not fly at all.
You would be free to invent levitation to fly if you could.
Has anyone read the Interim Guidelines that the PTO issued to its Examiners after Bilski.
Steps to Determine whether the claimed invention complies with subject matter eligibility requirements of 35 USC § 101
1. Consider the Breadth of 101 under controlling law
2. Determine whether the claimed invention falls within an enumerated statutory category (process, machine, manufacture, or composition of matter)
3. Determine whether the claimed invention falls within an judicial exceptions – Laws of Nature, Natural Phenomena, and Abstract Idea
and if it does fall under the judicial exception, Determine whether the claimed invention is a practical application of a judicial exception.
It then instructs the examiner to apply the MoT test for a practical application.
Now I have received several rejections based on Bilski but they have never stated that my claims fall under a judicial exception. Therefore, I have replied that the MoT test is inapplicable because my claims do not fall under a judicial exception and if the USPTO believes they do fall under a judicial exception, that they should so state. Because how can I possible argue that a claim is a practical application of a judicial exception if I don’t know what the law of nature, natural phenomena, or abstract idea that I am supposedly trying to claim is?
No responses yet.
Patenting an airplane is like patenting and algorithm. It makes it impossible to practice the profession of making airplanes.
Night Writer Patent Attorney said:
>> Pick the right sorting algorithm (read information transformation method) and you can sort all the names in the wink of an eye.
When I was learning programming I “reinvented” several of the well known sorting algorithms long before I’d ever heard of them, I’m not that smart its just logic and math.
1+1=2
Software engineers can not escape solving the same problems someone else has solved, its trivial to do in software…the expression is what needs protection (and is in copyright).
Patenting an algorithm is like patenting a legal defense. It makes it impossible to practice parts of our profession.
umm a pencil is and a piece of paper is a machine:
* Main Entry: 1ma·chine
* Pronunciation: \mə-ˈshēn\
* Function: noun
* Usage: often attributive
* Etymology: Middle French, from Latin machina, from Greek mēchanē (Doric dialect machana), from mēchos means, expedient — more at may
* Date: circa 1545
1 a archaic : a constructed thing whether material or immaterial
link to merriam-webster.com
Why do examiners such as “6” think they know and understand the law so well just because they sat in on Solicitor Chen’s workshop on how to reject patent applications?
“It isn’t exactly rocket science that you have nothing to threaten me with…”
Right. Like one phone call to your TC Director isn’t going to bring your little re-opening merry go round to a grinding halt.
LOL
You’re a legend in your own mind.
Mr. Richardson:
Regarding your statement:
“At every company I’ve worked for in the last 25 years, one of the first and
most emphatic lectures I’ve gotten from the legal department is “Never look
at a patent. Don’t search online, don’t ask, don’t let anyone tell you
anything about anything that’s patented.” The reason of course, is that if
we accidently infringe something we may have to pay. But if we knew about
it, we may have to pay much more.”
Those attorneys should be sued for giving such advice. Perhaps if you do look for and find a patent ahead of time, you could have figured out how to work around the patent and avoid getting sued and losing in the first place.
I am in house in a very litigious industry and we maintain an extensive database of related patents and applications specifically so that we don’t get sued.
“Goodness, 6. You are hostile.”
I wrote that in a totally gentle manner, with no hostility meant what so ever. Completely, believe me. I have nothing against him, its fine if he wants to sit there, I just don’t understand what he is thinking. He isn’t going to get anything, and he’s just wasting his time. Sure, he’s on the client’s dime, but come on.
“And if you want me to take a hike then please be prepared for an appeal or a petition.”
No problem, that’s why I have a high appeal rate, a high approved pre-appeal rate, and a high appeal brief rate. But in the instant situation, the guy can tell he just got catch 22ed. There is no “appeal” or “petition” that is going to save him. He knows good and well there is some art to prove his 112 point, and he knows good and well the same art will 103 him. Wtf? Sure, come and argue if there is an argument to be made, but this guy already admits that he knows he’s fed and yet he’s still arguing.
And, as a bonus for just for you, and because the appeal process is onerous, I might start reopening ad infinitum just for kicks and so that I don’t have to ever put up with your threatened appeal headache. Just spend 15 minutes every 3 mo to send you a new action until you go away. It isn’t exactly rocket science that you have nothing to threaten me with, and I have a lot to threaten you with. $$$. Don’t even go down that road.
Be sure to understand my point, my point is not to ever argue, My point is to not argue when you know you’re in corner that is impossible to get out of.
“Did you get nothing from the sorting example? The point was 101 and not 102 or 103.”
That was my point too. There’s nothing to “get” from the sorting example except that you’re trying to get around the biggest barrier to patent protection, the unwritten law that if your claim is worthless then there was no point in getting it, by claiming something that fails 101. 102 and 103 do not enter this little analysis at all.
Mr. Richardson:
Here’s the deal, whether software patents should be patentable or not is a question Congress should answer not the courts. And the Supreme Court agrees. They have repeatedly said, do not read limitations into 101 that Congress did not intend. Congress can make anything patentable that it wants. They have that power. The Supreme Court cannot take it away (but for unconstitutionality).
Congress has had many years since State Street to “fix” the issue of business method patents but has never done so. In fact, § 273 shows that, in fact, they intended business methods to be patentable.
Your argument is for legislative debate not legal debate. Under the law business methods are patentable, and unless the Supreme Court finds that such an inclusion is unconstitutional, their hands are tied to hold otherwise.
>>Your use of profanity leads me to believe you >>are a disgruntled government employee. >>Nevertheless, I will respond to your statement.
It’s fairly disturbing too.
6:
Your use of profanity leads me to believe you are a disgruntled government employee. Nevertheless, I will respond to your statement.
Your statement implies you know which art Bilski is intended for. Please enlighten us. Because no where in the application (have you read it) does Bilski say that this is a method restricted to computers. I can perform all the steps in the Bilski claims in person, through the mail, by fax, over the phone, using sign language, using software. Heck my three year old daughter manages risk all the time. “Dad, can I take my toys to Suzie’s house in case she doesn’t let me play with her toys.”
I’m not saying that he has to publish the source code but he disclose best mode of implementation. In his case he disclosed nothing. You cannot infer enablement. It has to be disclosed. It’s the law.
How can an inventor be awarded a patent on inventions he did not conceive? In Bilski’s case, he did not disclose any manner of performing the methods that revealed his conceptions.
Bill Richardson said:
>>With regard to software, Mr. Larsen is right. >>and Night Writer Patent
>>Attorney is mistaken. Yes, it takes some tiny >>effort to “transform” an
>>unsorted list into a sorted one, but that >>doesn’t make it an invention any
>>more than the invention of “transforming” the >>text of a legal brief into an
>>oral argument.
First, 30 years about computers spent about 80% of their time sorting. Second, the point was to show why information processing should be eligible for patentability. Third, how one sorts makes a huge difference. Pick the wrong sorting algorithm and you can’t sort the names of all the people in the U.S.A. before you die. Pick the right sorting algorithm (read information transformation method) and you can sort all the names in the wink of an eye. So, I guess it matters how you sort. And the method will change how much energy is used, space, and time.
Cheers to all. Good to have such lively debates. The trollbots are hilarious.
>>No, we get it. Who the f CARES that >>it “essentially” emulates other machines? >>NOBODY. The fact has no relevance to what the >>law should be, or is.
Why does it have no relevance?
>>But, the bottom line is, why can this guy not >>just take the hint to take a hike?
Goodness, 6. You are hostile. Gee, you are a government employee, right? And if you want me to take a hike then please be prepared for an appeal or a petition. You remind me of an examiner I had to deal with a few months ago. I had to call up his SPE because the examiner was just refusing to follow the MPEP, which you are bound to follow. The SPE said: do what the attorney said. The application was allowed.
>>SO CLAIM ALL THAT INSTEAD OF THE SORTED LIST. >>JES US.
Did you get nothing from the sorting example? The point was 101 and not 102 or 103.
6: you have become more and more hostile with less and less content. Soon you will become a 6-trollbot.
With regard to software, Mr. Larsen is right. and Night Writer Patent
Attorney is mistaken. Yes, it takes some tiny effort to “transform” an
unsorted list into a sorted one, but that doesn’t make it an invention any
more than the invention of “transforming” the text of a legal brief into an
oral argument.
Transforming and manipulating data is what computers DO. Further, the nature
of computer programming is such that every program written contains within
it uncountable instances of techniques and operations that have already been
discovered or used by others. The science (or art) that is computer
programming is to arrange those myriad known techniques into a pattern to
accomplish a specific goal. Mr. Larsen’s analogy of patenting computer
programs to patenting legal arguments is quite apt.
The straw man example of having your invention stolen as soon as it’s on the
market is not one that applies to computer programming. Computer programming
is hard (but just being hard doesn’t mean it’s an invention), and the only
way to “steal” a program would be to copy it directly, which is well covered
by copyright law. Independently reimplementing the program — even if one
“skilled in the art” tells you how it’s done — requires prohibitively large
effort. That effort is what fosters competition.
Unfortunately, there is a dichotomy between the mindset of engineers and
that of lawyers. To lawyers, the law is a tool used to acquire some
advantage. By patenting something, I can prevent others from competing
effectively. Whether or not the patent “should” be granted is irrelevant.
But to an engineer, the law is an attempt to solve a problem. If the problem
is not being solved or is made worse, the law is broken and needs to be
adjusted.
Patents, like copyright, are (or were) intended “to promote the progress of
science and useful arts”. Patents on drugs, machinery, chemical processes,
etc. do have that effect because once demonstrated or sold they are easily
copied and without patent protection, yes, someone would duplicate your
invention immediately. But with software, patents are at best pointless, and
at worst a serious impediment to innovation. Instead of saying “I won’t work
on this unless I’m sure it won’t be stolen”, programmers say “There’s no
point to working on this, because if I’m successful, someone will sue me.”
At every company I’ve worked for in the last 25 years, one of the first and
most emphatic lectures I’ve gotten from the legal department is “Never look
at a patent. Don’t search online, don’t ask, don’t let anyone tell you
anything about anything that’s patented.” The reason of course, is that if
we accidently infringe something we may have to pay. But if we knew about
it, we may have to pay much more.
In the software field, this means that patents are NOT promoting progress.
When a programming method is patented, it completely removes that method and
anything resembling it from the realm of useful knowledge forever (20 years
*is* forever in computer science). It also vastly increases the risk of
further development, since any one of thousands of known programming methods
could also be patented (or claimed to be, which costs just as much to defend
against).
Yes, programming is hard and the results are often quite innovative. But
duplication is almost always just as hard, so there’s no need for an
artificial barrier to prevent that duplication. If the purpose of patent law
is to promote scientific and cultural progress, patenting software is NOT
helping. If the purpose is to ensure economic advantage for the innovator,
it’s not helping there either because every programmer faces the same
unknown patent threats from all the others. If the goal is to ensure that
the companies with the deepest pockets can secure their continued economic
advantage over all smaller competitors, then it’s working just fine.
“HOWEVER, it lacks enablement. Nowhere in the application did the inventors disclose HOW to perform the steps.”
That’s because you are rtarded. You don’t have to disclose HOW to perform the steps if someone like me who knows di ck about these arts could implement the claimed “inventionlol” in less than an hour given the raw “materials”.
“First of all, not all claims CAN be so amended.”
I’m aware, that’s the applicant’s failure. We’re talking about applicant’s that do not fail.
“The only open question is do you want to hold that a method that is partially carried out in someone’s head is eligible for patentability. For example, perform test a on the person, look at the results and based on the results perform either therapy b or therapy c.
I think we should allow these and we will be better off for it if we do.”
I’ll disagree.
“its not oooobvioussss daaaat it was did by a commmmpuuuuuter.”
Obviousness has nothing to do with WD homie.
“Making a claim easier to work around (by using a different particular machine, for example)is clearly unfair to the inventor.”
No it isn’t. If the m fin inventor didn’t disclose it, claim it, or know of it at time of conception, then there is no reason to go granting him a patent on it. Homie, you just think granting broad claims for the sake of granting broad claims is a great thing. I’m here to tell you that in and of itself it isn’t. There’s no reason to use that as a basis for any determination.
“So, as applied to machine-or-transformation, one might expect that machine-or-transformation shouldn’t be the only way that we can find process claims nonstatutory, but it should still be a way.”
I like the way you’re thinking today plurality.
“This is the core of the misunderstanding of the MM-trollbots. They don’t understand that a CPU essentially emulates other machines. ”
No, we get it. Who the f CARES that it “essentially” emulates other machines? NOBODY. The fact has no relevance to what the law should be, or is.
“Third, D didn’t write the article. Jeez, he even included a picture of the author for those of us who have trouble reading. And you’re the one calling people mor ons?”
Yeah I noticed that later. There was a sht ton of content to read and I just posted as I read it.
“Of course, this definition means you would have to claim each single computer (machine) or article (hard disk transformed by code) separately to meet the “particular” limitation of the rule.”
You sir, caught on quick. I’m not sure about the total fees for these types of claims. However, I would like to patent a general purpose machine programmed to generate such lists of claims, can anyone help me with this?
“http://www.google.com/patents?id=lB5AAAAAEBAJ&printsec=abstract&zoom=4#v=onepage&q=&f=false”
Mark, that claim appears to me as if it passes MoT.
” you become a commodity seller.”
Perhaps you were a commodity seller from the beginning and you just didn’t know it?
“And, I think it takes time and energy and space. And, I think how well the sorting is done makes a big, big difference.”
SO CLAIM ALL THAT INSTEAD OF THE SORTED LIST. JES US. The whole issue is that your actual invention is worthless, so you need to tread into the unclaimable to get any claims of value. Sorry, take a hike.
You remind me of an attorney who my bud just told me about having an interview with. The attorney was worried about a 112 issue, and apparently he felt like in order to get around the 112 issue (probably a miyazaki, I got this bud using it 🙂 ) he’d have to submit a piece of art showing x. And then, he surmised, when he did that, my bud would turn around and 103 him based on that art showing x. He didn’t feel like that situation was fair. My bud of course felt like he should report the lawyer to legal discipline or whatever (I explained to him later why that isn’t necessarily true) because he was obviously aware this feature was old and there would be motivation to combine etc. and he hadn’t put that on the record. It’s a hilarious situation, with both sides doing dmb things. But, the bottom line is, why can this guy not just take the hint to take a hike?
Um, about that pencil, it’s not a machine but it is an apparatus. Same on the paper. But is it a particular apparatus? Or does “particular” only modify “machine?” The phrase “particular machine or apparatus” would never pass 112, 2nd if it came up in claim language, but it makes a great bright line test.