By Dennis Crouch
CLS Bank Int’l v. Alice Corp, App. No. 2011-1301 (Fed. Cir. 2012) (en banc order)
The Federal Circuit has refocused its attention on the question of patentable subject matter and has ordered an en banc rehearing of CLS Bank Int’l. v. Alice Corp. (Fed. Cir. 2012). In its initial panel opinion, the Federal Circuit held that, when considered as a whole, the claimed data processing invention was patent eligible. Judge Linn wrote the majority opinion suggesting that a court should only reach Section 101 issues when subject matter ineligibility is “manifestly evident”. Judge Prost wrote in dissent and argued that the majority improperly ignored the Supreme Court’s most recent statements on the topic found in Prometheus. The patentable subject matter question in CLS Bank is virtually indistinguishable from the parallel issue in Bancorp v. Sun Life. In that case, however, the Federal Circuit ruled the invention ineligible.
In its en banc order, the court reformulated the questions presented as follows:
a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?
b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?
The Federal Circuit has asked for the USPTO to file a brief as amicus curiae. Further amicus briefs may be filed without consent of the parties or leave of the court but must otherwise follow Federal Circuit’s Rule 29.
More Reading:
- CLS Bank v. Alice Corp: Patenting Software Ideas
- CLS Bank v. Alice: The “Nothing More Than” Limitation on Abstract Ideas
- Ongoing Debate: Is Software Patentable?
- Ongoing Battles over Patentable Subject Matter
- Director Kappos: Some Thoughts on Patentability
- If the software method is not patentable, then neither is the “computer readable medium”
- Ultramercial v. Hulu: Computer Programs and Patentable Subject Matter
“ta da Used”
Ned your misuse of “use” is obvious.
Simply ask yourself if the old machine could be “used” to obtain when the new machine delivered.
It obviously could not. So in order to “ta da use,” you first had to upgrade the machine.
This is a simple illustration of the Grand Hall experiment that graced this blog so long ago.
Or to use your baseball/fastball analogy, the example here is not a fastball, but rather configuring the baseball to have dimples so that the flight characteristics can be changed and “the use” is quite in fact different than just the original baseball.
Right. We do not want courts picking the outcome they want and then twisting the law to arrive at that outcome. We want courts to follow the law and arrive at the outcome required by the law.
No. In my Hubble corrector, we do not display or print or project the image. At the end of the claimed process the image resides in computer memory. The presentation is insignificant post solution activity. Accordingly, we would not burden the claimed method with it.
Accordingly, according to you et al., the method is not useful?
Or do you recognize the usefulness?
Les, "Your reason for allowing my Hubble corrector was that it was operating on measurements of something physical".
Not entirely. I said and I will repeat that the reason it was patentable was that the calculation produced a better image. The results were
ta da
USED
to produce a new, physical result.
This HAS BEEN THE LAW SINCE 1852 AND Le Roy v. Tatham.
I’m not sure what you are replying to now Ned. Your reason for allowing my Hubble corrector was that it was operating on measurements of something physical.
Are you now saying its allowable because its not abstract?
Les, if a mathematical algorithm modifies a physical step or apparatus, it is not abstract.
“Les, the projectors that project the image are physical.
Stop being ridiculous. ”
What projectors? My focus adjuster process doesn’t include projecting and there is no projector in my claim. When it was working on Hubble image data it received pixel values, processed pixel values and output pixel values. You agreed it was patentable.
When I change the work piece to computer generated abstract art images it still received pixel values, processed pixel values and output pixel values. However now you say it isn’t patentable. All I changed is the work piece.
Patentability should not depend on the work piece.
You arrived at these contradictory conclusions because you are trying to apply the hodgepodge of result based rulings that are based on egregious twistings of the law to suit the outcomes desired by judges in particularly bad cases.
It should be ended. 101 includes no prohibitions against natural laws, mental steps or algorithms. Every process is an algorithm. The law says processes are patentable. What is there to discover but aspects of nature? The law says discoveries are patentable.
Stop the madness. Lead us back through the looking glass!
“You think Rader, Newman, and Linn will hold that any claim that begins ‘A computer-implemented method’ is 101 eligible.”
First off, the claim is to a data processing system comprising a data storage unit and a computer – not a method. Try to actually understand what is being claimed before going hyperbolic.
“What’s the rationale?”
Because the use of a concrete machine is where I suspect they’ll draw the line between abstract and not-abstract.
The “abstract idea” test is unworkable. It is extremely fact dependent. The Supreme Court’s distaste for a “bright line test” has made 101 in absolute morass. 101 was never intended to be a tricky test. Is it a process, machine, manufacture, composition of matter? Yes … then move to 102/103. Nearly 60 years after 35 USC 101 hit the books, and we know less about what it supposedly encompassed today than we did 60 years ago or 40 years ago or 20 years ago or 10 years ago.
Your distaste for certain patents notwithstanding, your arguments against these types of patents are policy arguments – not arguments based upon the text of 35 USC 101. By trying to shoehorn your arguments into 35 USC 101, you are left arguing that a process is not a process and a machine is not a machine.
Granted, some of those arguments have been persuasive on the process front. However, if they prevail on the machine front, there isn’t a patent to a machine out there that couldn’t be attacked as merely being the physical embodiment of some “abstract idea” – the reason being is that all patented machines start out as an abstract idea (i.e., the inventor’s inventive idea). Then we are left with figuring out how abstract is too abstract – no bright line test there.
Also, if you can argue that a machine falls under the “abstract idea” exception, then it is short leap to argue that manufactures and compositions of matter can also fall under the “abstract idea” exception. Like you, the people who have an axe to grind against a particular technology will use that rational to argue that certain types of technology are too abstract. It is also too clear to me (and I think Rader, Newman, and Linn) that arguments based 101 are being used as surrogate for what should be policy arguments presented to Congress. I suspect that they want no part of it.
NWPA: “I’ll say it again and again. How can a machine that is running in the corner and performing a useful task be an abstract idea? How is that possible?”
As always your questions are a breath of fresh air on this topic. For once I would like to see someone answer them so that I can at least get a perspective of the other sides arguments.
But as usual, all I ever hear from the anti patent and anti software crowd is silence.
” I do not think that the fact pattern in the case fully supports upholding patent-eligibility.”
Mr. Cole:
What facts would those be, exactly?
If we are going by the law then I have not seen anyone present any facts as to why Alice claims are not patent eligible. And I am entirely open to the law being used to demonstrate the claims are invalid under 101 but to date it just has not happened.
For example,
Can Alice claims be reduced to an algorithm as in Benson?
Does Alice merely add on a computer as extra solution activity as in Flook?
And before you answer please reconcile that answer with the “Integration Analysis” used in Diehr and relied up on in Prometheus.
“A breakthrough would be if MM himself was the first to highlight the 9-0 Prometheus lesson turned into the Official United States Patent and Trademark Office examination guidance that showed exactly how to handle such an integration analysis.”
A delicIous irony that is still lost on MM.
Now the instructions for “Integration” are included in the new MPEP as well.
“Such selective choices reflects poorly on any theories that Mr. Heller advances.”
The one thing the Court has made clear is that all paths to 101 go thru Diehr. Until Mr. Heller is able to reconcile his theories with Diehr’s claims as a whole and integration analysis, he won’t get much traction.
A breakthrough would be if MM himself was the first to highlight the 9-0 Prometheus lesson turned into the Official United States Patent and Trademark Office examination guidance that showed exactly how to handle such an integration analysis.
But that would be MIGHTY self-defeating wouldn’t it?
“Can you tell us how to “integrate” a “new” mental step with a prior, old conventional step in such a way that it will pass 101?”
Hello MM:
I am happy to help you here, again. What you first must learn is that the law says we must take the claims as a whole.
So if the claim is a process claim, and the process itself is old, such as Diehr’s process for curing rubber, that will not disqualify it at least at 101.
Now if the process contains mental steps, new or otherwise, such as the programming of a computer with the Arrhenius equation as used in Diehr, we must still take the claims as a whole, and the answer would still be that the claims are not barred at 101.
Even if the claim contained a pure thought, such as deciding the rubber has been cured, after looking at instruments, or hearing an alarm we must STILL take the claims as a whole, and the answer would STILL be that the claims are not barred at 101.
Now I will grant you that if the process is a pure mental process such as solving a math equation such as the arrhenius equation, and that equation is claimed by itself, it will be ruled as non statutory subject matter because of a judicially created exception.
And yes in that scenario the Arrhenius equation would be placed under the abstract idea umbrella even though there is nothing abstract about it.
But a claim with a thinking steps, even as applied math, used in conjunction (integrated) with all the other steps ( non math) in the process is statutory subject matter.
This, “Integration Analysis” was established in Diehr, upheld in Biski, buttressed in Prometheus, and applied by the USPTO, Official Guidelines.
Understand now?
Did we make a breakthrough
“Where’s the new mental step in Diehr, anon?”
Hello MM:
The fallacy in your question is that there is such a thing as a “new” mental step. When in reality there is no such measurable, observable thing as a “new” mental step or thought. There are simply mental steps and physical steps, and combinations of both, which most are.
Now, in Diehr, as in most process patents, there are steps that require conscious focused thought, such as decision making, calculation, and communication. Whether these steps are “new” or old are of no consequence to whether a claim is a patent eligible application.
As long as the mental steps are integrated with the rest of the non mental steps into the process as a whole, the process is a patent eligible application, and passes muster at least at 101. This fact can’t be disputed, as usual.
Nemesis,
As post Benson lower courts have shown, you simply are not correct.
Knowing the difference between a holding that must be followed and dicta which does not have to be followed (and yes, even Supreme Court dicta), makes all the difference in the world (the real one, not Ned Heller’s).
Agreed that Benson is an anti-software rant. But when Scotus rants, the law is a rant.
Dicta?
The SC did not hold that the problem with the claims was that they did not claim a practical application?
Les, the projectors that project the image are physical.
Stop being ridiculous.
A computer program that calculates a number… No use for that number is claimed. What do we have? Do we have a practical application? Hardly. A new machine? You have to be kidding. You have nothing.
Such are claims that produce numbers that might represent a correlation, odds, probability, risk, price, the amount of grace necessary to cure a venial sin. And the beat goes on.
The SC has made it clear for 160 years that patents are granted for practical applications of abstract principles.
Funny thing is MM, it is “your side” that needs to make a compelling argument against patentability – and there is ZERO on the table for that position.
Did I stutter?
Yes the DICTA in Benson concerning the long anti-software rant that wa immediately and justifiably ignored by the lower courts – by those who knew the proper legal understanding of patent law because they helped draft that very SAME patent law.
Thanks Nemesis, but your agreement (or lack thereof) changes neither fact nor (current) law which aligns with what I have stated.
I’d like to agree with you, but Scotus would give us each a spanking.
1. A table that can drive a car.
or better yet
2. A tangible piece of concrete that can drive a car.
ARE YOU GOING TO TELL THAT’S NOT CONCRETE?
That’s pretty much the depth of the arguments we’re getting in support of the patent eligibility of computer-implemented jonk.
MM: Can you tell us how to “integrate” a “new” mental step with a prior, old conventional step in such a way that it will pass 101?
anon: In essence, just see Diehr.
Where’s the new mental step in Diehr, anon? I seem to recall a computer being involved but I don’t recall any claim in Diehr being construed to require a step of thinking something new.
Maybe the term “in essence” means that you simply get to make stuff up. Let me know.
So its the nature of the work piece that’s important? If the image were computer generated abstract art the same process applied to that image should not be patentable because the image being processed is not necessarily a physical measurement?
Please.
Bad cases make bad law. The courts should undo all the harm they have done by reading limitations into the law that just are not there.
Dicta?
Les, in the end, that "step," modifies something physical, an image. The step actually is the algorithm that accepts input data, produces output data where the input data is a physical measurement of something, and the output data is something physical, in the case Hubble, an image.
This is exactly the same situation we had in Alappat.
Where in the Supreme Court brief, anon, did the Supreme Court say that a putative step in a process that was not a physical act or which did not modify a something physical was a step in a process?
I’ll say it again and again. How can a machine that is running in the corner and performing a useful task be an abstract idea? How is that possible?
I will also say again and again: prove it! If it is an abstract idea in the claims, then you should be able to point to a computer that is infringing the claims and show how the computer was not enabled by the patent. That is patent law and not the voo doo of Lemless, Possey poo, Sternless, or the other dippy doobars.
As to the twin tragedies, anon, you can turn your wax nose up as far as you like, but willing them out of the discussion won’t magic them away. They are too tragically and manifestly real for that.
Still I appreciate your advice to watch out for the “tragedy of the Tragedies” when I stumble over it. I laughed at that.
Note too that Ned left out Chakrabarty, which he also finds “inconvenient” for his views of how the patent world should be.
Such selective choices reflects poorly on any theories that Mr. Heller advances.
In essence, just see Diehr.
If you can’t figure it out from that case, nothing I say would be capable of educating you.
“A computer program that computes the value of a commodity does not affect the computer it runs on,”
You couldn’t be more wrong. In order to “run on” the computer MUST be changed.
) I know that stripping out mental steps is not the law today because I know what the law today actually is.
Can you tell us how to “integrate” a “new” mental step with a prior, old conventional step in such a way that it will pass 101?
Just curious, Mr. Legalknowitall. Otherwise, there isn’t much practical difference in the analysis proposed by the government and that conducted by the Supremes.
Not to worry. Great minds think alike. …and I didn’t want you to be left hanging.
The function needs to be related to the printed configuration. Measuring cup lines on a cup affect the function of the cup. A treatise on pharmacology printed on paper does not affect the function of the paper.
A computer program that computes the value of a commodity does not affect the computer it runs on, so it is more like the pharmacology text than the measuring cup. A computer program that causes the allocated disk space to vary in the hardware it runs on does affect the function of the hardware, so it is more like the measuring cup.
There is some good reasoning by the majority in Alice but, sadly, I do not think that the fact pattern in the case fully supports upholding patent-eligibility. So the likelihood is that the panel decision will be reversed and the Alice invention be deemed non patent-eligible. The only question IMHO is whether this will happen with restrained reasoning or damaging reasoning.
I find it amazing that people still, to this day, do not get Benson and OVERREAD Benson and place any credence in its anti-software ranting DICTA.
“Table” is an abstraction.
Beware too the Nose of Wax syndrome with 101. Such use by courts (or the Court) is a misappropriation of constitutional authority – in the US at least.
Beware the tragedy of the Tragedies (both commons and anti-commons tend to be faulty rhetorical devices used solely for agenda seeking diatribes). Each has too many errors and caveats to be of much use in an objective discussion.
Reiner,
Your post is replete with factual (historical) and legal mischaracterizations.
To wit: appropriation of valuable knowledge, patents as a but-for “reward” (your emphasis on “need” is simply incorrect) and the notion that software (as opposed to ANY other technology) is an “anti-commons” issue (notwithstanding that people want it to be so for their ideological agendas), to mention a few.
Is the “tragedy of the Commons” a reality? I think so. Is the “Tragedy of the anti-Commons” a reality? Again, I think so.
Given that, do we want a patent system that avoids both? Presumably Yes.
Is such a system achievable? Presumably Yes.
Has 35 USC 101 a role to play. I suppose so.
Are these questions then important? Anybody think not?
“Les, I was thinking more along the lines that a “step” in a process that is not a physical act, or which does not modify something physical, is not a step”
I couldn’t disagree more. For example, a step that changes the pixel value in an image in a process that corrects original Hubble images to correct for the incorrect mirror polishing is a step, even though you appear to think the change in state in the associated bits is not a physical change (which by the way, it is).
And the subject en banc review we are discussing could result is a ruling so outrageous as to cause the Supremes to take the opportunity to correct all their past mistakes. I thought that was what we were talking about.
101 is a central provision, sinc it is the only “absolute” test. 102 and 103 are both relative to the state of the art.
Software is not a subject-matter category. “state Street” was right insofar that there is no reason for a separate mathematical algorithm exception. But it was wrong with its “useful, concrete and tangible” criterion.
It is much more fundamental to recognize that patents were never intended to allow appropriation of any type of valuable knowledge. Patents are the exception to the rule of freedom of competition.
Patents originate from “privilege” systems that were in use 200 years ago. But in essence they still are. Which becomes clear e.g. from the lack of an independent rediscovery defense: regardless of the effort of subsequent independent inventors, only one inventor gets te privilege.
Yes, sometimes the exclusivity of a patent is needed. This is only the case if an invention is a complete solution that all competitors could copy straight away if there would be no patent protection. But this is a rare exception. Even with identical products there are various ways to “differentiate” from competitors.
A corollary of this line of tought is that patents for parts of products that can not exist independently (e.g. interfaces) are not needed. Never. And swpats typically suffer from a “tragedy of the ANTI-commons” – which makes them very suitable for dreadful “strategic patenting” games.
“Therefor, software was held to be, in itself, to be abstract in Cybersource. Correct?”
No. That would be incorrect.
That you do not realize this only reinforces my other comment this morning.
1) I am NOT Mr. Wheeler
2) You “decide” nothing – you follow the direction of those who decide and you slavishly apply the law. You do not have the authority (nor skill) to make the law.
3) I know that stripping out mental steps is not the law today because I know what the law today actually is.
An idea for a table is not abstract, it is about a table.
“What’s the rationale?
“Integration”
“In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an in- ventive application of the formula.” Prometheus Syllabus 566 U. S. ____ (2012) 3
Just like Diehr started with a process for curing rubber, Alice starts with a data processing system then proceeds to integrate a computer and data storage unit with the process as a whole.
Judge Linn was right on the money and in perfect concert with Prometheus, and Diehr.
6, the law is “Integration”, 9-0. Therefore if the enbanc court applies the law Alice claims will be upheld as patent eligible subject matter.
The Court in Prometheus in reference to Diamond V Diehr, stated,
“the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole. Those steps included “installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly re- calculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time.” Id., at 187. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, al ready in use, or purely conventional. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equa tion in conjunction with all of the other steps in their claimed process.” Ibid. These other steps apparently added to the formula something that in terms of patent law’s objectives had significance—they transformed the process into an inventive application of the formula. Prometheus. ( MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC. Referring to Diehr as precedent. (Emphasis added)
“a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea..”
Integration
“and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?”
When the technology of the claim is integrated within the process as a whole.
Although “Integration” was explicitly described in Prometheus, a Law of Nature case, the Prometheus Court relied on Diehr, an algorithm used in conjunction with a computer case, for its Integration Analysis.
Therefore Alice Corp can use the same Analysis from Prometheus to demonstrate it’s claims are a patent eligible application.
While at the same time nullifying Judge Prost dissent that the majority improperly ignored the Supreme Court’s most recent statements in Prometheus.
“The claims aren’t directed to a process — but a machine with machine components. I’m sure there are different factions at the USPTO who want different things. ”
Then the claims can’t by definition be abstract, and only need meet the following definition of the Supreme Court to pass 101.
ii. Machine – a concrete thing, consisting of parts, or of certain devices and combination of devices. Burr v. Duryee, 68 U.S. (1 Wall.) 531, 570, 17 L. Ed. 650 (1863). This includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. Corning v. Burden, 56 U.S. 252, 267, 14 L. Ed. 683 (1854)
“manifestly evident” means you can dispute it.
For example a manifestly evident abstract concept is totally within the mind and thus is subject to much disagreement and dispute.
However when you start with a process for curing rubber and include the use of a well known formula such as the Arrhenius equation, in conjunction
( integrated) with a digital computer then you have a patent eligible application. Of that there can be no dispute!
I see that the court reformulated the questions. I wonder if Rader CJ had a hand in that, because RR is often over in Europe, debating exactly these issues with his peers.
Somebody upthread offered the comment that there are plenty of software patents in Europe despite the ban (Art 52, EPC)on “computer programs as such”. The reformulated questions neatly reflect the eligibility debate in Europe, between the “contribution” approach of the English courts and the “technical character” approach laid down by the Enlarged Board of Appeal at the EPO.
So the bare outcome of this en banc matter will be less interesting to European readers than the reasoning that supports it. I hope it will be cogent and unassailable, but I’m not holding my breath because I think these are really difficult questions. I have to say, I’m glad I don’t have to answer them.
No code should equal no patent, plain and simple.
“Nowhere does the Court hold that software is “per se abstract.””
Software was the subject of that application. Was the software in that case per se (in itself) abstract? The answer is a very simple yes. Therefor, software was held to be, in itself, to be abstract in Cybersource. Correct?
Would it be more to your liking if they spelled it out for you better?
“software patents “in general.””
“per se” does not mean “in general”. It means “in itself”. And you have not asked for a statement of software being “in general” ineligible. Although we’ll have one of those shortly I think.
The exclusion of software “per se” simply means that it is not a statutory class. That has been well-settled for a very long time – within the U.S. as well as outside.
Well the issue is that some things need to be patentable and some things need to be restricted, The fact is as a whole a program really can not be patented most of the time because the same thing can be done in vastly different ways. However specific algorithms such as SHA and the like need to be patentable. But if I design a program to follow the stock market and alert me when a certain stock hits x amount, you really can not patent such a broad concept. But that does not mean that a competing company should be able to copy the algorithm I used to follow the stocks and decide when to buy or sell a stock.
I read Cybersource just now; in its entirety. This case stands for a very limited holding: “A method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible.” Nowhere does the Court hold that software is “per se abstract.” In fact, the Court only says the word software three times in the whole opinion; none of those statements says anything about software patents “in general.” The opinion is limited to things humans are capable of doing without the assistance of computers.
You did not say which cases you include in “etc.,” so I will wait for you to elaborate on that.
“No 6, it is not a good point because it is not correct. ”
I will be the one to decide what is correct and what is not correct around these parts Mr. Wheeler. Remember, there is a rumor that I’m an authoritie.
” What this does is strip out all mental steps.”
Straight on ol’ chap!
“That is simply not what the law is today. ”
And how would you know? Have you seen a bunch of claims with mental steps being upheld on the novelty/non-obviousness of their mental steps? Because I have not noted such a thing.
The problem with not bothering is that a lot of folks inject an incorrect and often unstated premise that “all ideas are abstract” because they equate “ideas” with “eureka”-style thoughts.
It’s not really being cute with words; folks who debate this stuff actually go down that route. It is important to first establish that “ideas” are not all abstract, although the colloquial meaning of the word abstract suggests they are.
“I think you should start by defining an “idea;” i.e., “What is an idea?””
Or we could not bother and pretend that we did, or not even bother with pretending that we did.
“Ok, so where have you seen a court of law hold in a case that software is per se abstract as the word abstract is used in the context of the common law exceptions; ”
Why you changing the subject bro?
After you wrestle with that for a while, really consider why you would want to change the subject, the answer is: Cybersource, etc.
” and that the only remaining issue is if attaching it to a computer renders it patentable?”
I think that is CLS bank and Alice, but there was another iirc. I think Dennis mentioned it in the OP. Bancorp? Something like that maybe?
“http://news.yahoo.com/worlds-big-wanted-sign-600-million-jobs-200153869–politics.html”
“In other words, society itself – or how people “innovate” with each other – is needed far more than innovations in material technology”
Truth^ But those innovations aren’t patent eligible 🙁
We’re talking about divesting general purpose computer limitations of their eligiblity-rendering ability for a certain subset of ideas that we define as “abstract ideas.”
Abstract ideas are as-yet undefined. That can change with this en banc. What’s at stake, most likely, is defining a slice of patents where the idea’s abstractness is defined by reference to the role played by the general-purpose-computer limitation.
Some software patents will go away if they do define abstract ideas in relation to the role played by the computer. But not all. If Crouch insists on flashing the s-word in the post’s title, a more appropriate title would be “What kinds of software are patentable?”
“Is software patentable” is plainly not the question before the Court. The answer to that question is not something the Federal Circuit is constitutionally authorized to address in this particular appeal (case/controversy).
Those comments that omit the limitations on Benson and Flook as outlined in Diehr and emphasized in Bilski are every bit as “wistful.”
That’s a lovely glass house you are throwing stones from Paul.
No 6, it is not a good point because it is not correct. What this does is strip out all mental steps. Period. That is simply not what the law is today. That is a fallacy presented as law today.
Ned please take better care to present your fantasy law as your desired changes in law rather than intimate that such represent current law.
So what are we talking about?
“The rule is, though, that even if the array of ink on the surface is novel and non-obvious but does not interact with the paper or affect its transformation to another state or thing”
That’s not the rule. The rule requires merely a “functional relationship”
Put it this way: even MM (self defeats and) admits to the functional relationship. Without the functional relationship, the execution and configuration of machines into new machines would not happen, and no one would even be discussing this matter.
Point of fact (and law), the functional relationship is there and rules the day.
In the context of patent law jurisprudence, it is not helpful to define all ideas as abstract; and then search for non-abstract ideas. That’s a null set.
You can’t shift the meaning of “abstract” midway into your analysis and say “well, all ideas are abstract; so now let’s try and define an ‘abstract’ idea.”
Ideas are thoughts. All thoughts are “abstract” in the sense that they’re intangible, untouchable things in your mind. But that’s not what we’re talking about here.
does “manifestly evident” mean REALLY obvious or VERY obvious?
Is there such a thing as an idea which is NOT abstract?
I think you should start by defining an “idea;” i.e., “What is an idea?”
And you should also accept the premise that not all ideas are abstract. If all ideas are abstract, then it makes little sense to talk in terms of “abstract ideas.”
So you tell me; what’s an idea? Once you answer that, we can collaborate on the metes and bounds of the term “abstract.”
Ok, so where have you seen a court of law hold in a case that software is per se abstract as the word abstract is used in the context of the common law exceptions; and that the only remaining issue is if attaching it to a computer renders it patentable?
What software isn’t abstract?
“That does NOT mean that ALL SOFTWARE resides in that domain.”
I have never seen software claimed as something other than something that resides in that domain. If you have an exemplary patent that claims it such that it is not, I and many others would like to see it.
Agreed. Categorical exclusions are not for the Court (or courts) to make.
“Then th court itself can try to obtain a license before enjoining itself.”
Lulz lulz lulz. I had wondered though, in all honesty, why patent trolls haven’t started suing the courts by now.
I believe that Linn will participate regardless of senior status because he was on the original panel.
I don’t know what an abstract idea is. The Federal Circuit has an opportunity to define it.
They asked Mark Lemley that question point blank at a recent oral argument. And he admitted to not having an answer.
No Court has ever held that software code is, per se, an abstract idea; and that adding a computer makes it patentable. That is not any Court’s position. So the issue teed up is NOT software patentability. It is whether a computer by itself can remove an idea from the domain of abstractness. That does NOT mean that ALL SOFTWARE resides in that domain.
That is a false assumption; which is why the title of this blog is wrong.