In three recent cases, the BPAI has continued its trend of applying the Federal Circuit’s en banc Bilski decision to reject software-style method claims as lacking patentable subject matter. The BPAI is not asserting that software is unpatentable — the Board is simply failing to find ties to a particular machine; transformation of a physical object; or transformation of articles “representative of physical objects.” In two of the cases, the BPAI applied its power to issue new grounds of rejection — raising the Section 101 issue sua sponte.
In ex parte Gutta (BPAI 2009), Gutta (Philips) claimed a “computerized method performed by a data processor.” The claims include elements such as “a history;” “a plurality of clusters;” a “target user;” and “preferences of a third party.” The final step in the method involved “displaying” a score. In Bilski, the Federal Circuit found that the transformation of data into a visual depiction could render a claimed method patentable. Here, however, the generically worded step was merely “post-solution activity [insufficient] to impart patentability to a claim involving the solving of a mathematical algorithm.”
In ex parte Barnes (BPAI 2009), Barnes (Landmark Graphics) claimed a “fault identification method” that obtains seismic data and determines “a planarity value for discontinuities” in each “analysis window” in the seismic data. In this case, the BPAI entered a new ground of rejection under Section 101. The BPAI recognized that the claim called for both gathering and analyzing data, but those steps – without explicit limitations of how they are done – are insufficient to render the claim patentable.
In ex parte Becker (BPAI 2009), Becker and his fourteen co-inventors (Siemens) claimed a “method for maintaining a user profile.” As in Barnes, the BPAI entered a new ground of rejection under Section 101 — finding again that the method claims failed to satisfy the machine or transformation test.
Read the Opinions
- Ex parte Gutta (BPAI 2009)
- Ex parte Barnes (BPAI 2009)
- Ex parte Becker (BPAI 2009)
- Ex parte Cornea-Hasegan (BPAI 2009)
- Ex parte Bo Li (BPAI 2008)
Note: This was originally posted on Jan 26, but was inadvertently un-published. I this version is slightly modified to take-into account an insightful comment regarding the transformation of data into a visual depiction.
David Stein:
“I sort of doubt that. Let’s say the invention is a machine involving components “A connected to B connected to C,” and the applicant uses a broad but undefined term “B”. It’s probably not “consistent with the spec” to interpret B to include an elephant, a sandwich, and an umbrella.”
An infinite set does not necessarily include elephants, sandwiches, or umbrellas. The infinite set of odd integers, for instance, does not include 2, 4, or 6.
==
“Well… again, within reason. Even within computing – one of the most dynamic fields of science – the basic definition of a “computer” hasn’t changed much. Turing laid out the basic concept and operation, and although some variations exist (“DNA-based computing” being some of the oddest), the core concepts are pretty static.”
Of course within reason. Assume there is a true set X. The examiner’s version of X will be slightly larger than the true X. The applicant’s version of X will be slightly smaller than the true X.
==
“To the latter point – how a dispute is resolved: the argument need not “usually” be made to the BPAI. As illustrated in a recent PatentlyO post:
link to patentlyo.com
…80% of filed appeal briefs and pre-appeal conference requests are “weeded out” by the USPTO before reaching the BPAI, probably by withdrawal of the final rejection.”
Pre-appeal conferences “weeding out” 80% of appeals does not imply that a particular type of appeal does not usually go to the board. In my experiences, and being the stereotypical bureaucracy, the criteria for “weeding out” considers many other factors besides just “whether the examiner’s rejection is correct”. For instance, some SPEs like nice stats, and if the examiner missed a 101 or 112 rejection, then they’ll re-open just for that. Gotta increase the odds.
==
“And how about “memory?” Logically, anything can be a “memory” that stores information: a piece of paper, a DNA sequence, a quantum state of an electron. Even black holes encode and transmit information, according to Hawking’s latest view of astrophysics… can I construe “memory” to include a black hole?”
Doubtful, but I have interpreted “a processor” as “a software engine”. Of course, it was an interpretation consistent with the specification and one that a PHOSITA would have made. š
More good news.
This is change we can believe in.
Alan McDonald said:
“‘isn’t the reason for open-ended language in the spec to capture future infringers when the underlying technology (not the invention per se–in this example, the ‘underlying technology’ is a ‘computer’) changes in an unanticipated or previously unknown manner?’
No, the reason is so a troll can use the claim as putty and mold it around anything it can conceive as a potential for harassment.”
I’m not denying this possibility. My question was, aren’t there also legitimate reasons for the practice?
Hypo (in general terms)–suppose the useful and non-obvious invention, otherwise adequately claimed, involves some particular method of signal processing that results in a better picture on a monitor (e.g., a TV set). And suppose (not unreasonably) the basic invention works on any currently-used monitor, whether LCD, plasma, or even obsolescent cathode-ray tubes. It might be reasonable to attempt to claim this method without tying it too specifically to the monitor, because suppose (again a hypo) sometime later, while the patent is still in force, a new monitor technology appears and captures a big market share, and suppose the signal processing invention works with this monitor as well. The problem for the inventor is, if she was forced to tie her method to then-existing monitors, a later user could for all practical purposes infringe with impunity.
And so a court’s job can be tough. How do you weed out trolls from inventors? Or do we have to accept a tradeoff between the two?
“isn’t the reason for open-ended language in the spec to capture future infringers when the underlying technology (not the invention per se–in this example, the “underlying technology is a “computer”) changes in an unanticipated or previously unknown manner?”
No, the reason is so a troll can use the claim as putty and mold it around anything it can conceive as a potential for harassment.
“Merely specifying “computerized” doesn’t save it from Bilski, anyway, as this does not tie the claim to a “particular” machine.”
David,
On this I would have to disagree and suggest a draw, as the example under discussion did not clearly point out what was in the specification, and thus a claim specifying “computerized” may or may not be tied to a particular machine.
I would defer to Alappat if the specification included sufficient programing direction such that a PHOSITA would be enabled to “computerize” the remaining portion of the claim. In such a case, the mere word “computerized” in the preamble would in fact tie to a particular machine and would necessarily breathe life and meaning into the claim.
An Examiner wrote:
“Applicant’s spec can truthfully state “M can be A”. This does not imply that B and C are reasonable definitions, and if they are the only other possible definitions and are not reasonable, then the only reasonable definition is, in fact, A.”
Precisely. We are now in agreement that the open-ended form of the statement “M can be A” does not create a presumption that M can also be B or C, which was my point. So endeth our discussion of open-ended language.
===
The rest of our discussion pertains to whether a human brain is “reasonably” within the definition of an undefined term “computer.” Let’s start here:
“Z is the intersection of Y and X.”
No dispute here.
“Applicant has complete control over Y. If you explicitly define a term in the spec, you can limit what is in Y. If, however, you solely use possible language, and provide no explicit definition, then Y is an infinite set.”
I sort of doubt that. Let’s say the invention is a machine involving components “A connected to B connected to C,” and the applicant uses a broad but undefined term “B”. It’s probably not “consistent with the spec” to interpret B to include an elephant, a sandwich, and an umbrella.
===
“Unfortunately (or fortunately), the examiner crafts what is and is not in X, and it changes over time.”
Well… again, within reason. Even within computing – one of the most dynamic fields of science – the basic definition of a “computer” hasn’t changed much. Turing laid out the basic concept and operation, and although some variations exist (“DNA-based computing” being some of the oddest), the core concepts are pretty static.
===
“The only way applicant can attempt to prove something isn’t in X is by arguing it (usually all the way to the BPAI), which may or may not be successful (and in my experiences has almost always been unsuccessful).”
You’re sort of blurring two concepts: what does a term legally means, and how is a dispute over an undefined term resolved?
To the former point – what a term legally means: the term is construed as PHOSITA use it… not as you, the examiner, use it. And there’s plenty of evidence to demonstrate that your interpretation is pretty off-base, Examiner. (Yet another example: does the field of “computing” include the work of psychologists, psychiatrists, neurologists, and neurosurgeons?)
To the latter point – how a dispute is resolved: the argument need not “usually” be made to the BPAI. As illustrated in a recent PatentlyO post:
link to patentlyo.com
…80% of filed appeal briefs and pre-appeal conference requests are “weeded out” by the USPTO before reaching the BPAI, probably by withdrawal of the final rejection.
And frankly, if you can get the backing of your SPE and the TC that the undefined term “computer” includes a human brain… then I’d be very surprised.
===
In general… the problem with this whole debate is that you’re threatening to require applicants to define virtually every term, or else you’ll reject it by cramming in every possible interpretation that you (subjectively) believe to be reasonable, or at least barely plausible.
You suggest that “machine-based computer” is sufficiently specific. On the contrary… if the term “computer” is open to wide debate, how about the term “machine?” A machine can be made of chemicals, right – as in DNA computing? And if chemicals are fine, why not neurons? They operate on electricity, after all… what is the technical difference between an organic “machine” and a semiconductor-based “machine?”
And how about “memory?” Logically, anything can be a “memory” that stores information: a piece of paper, a DNA sequence, a quantum state of an electron. Even black holes encode and transmit information, according to Hawking’s latest view of astrophysics… can I construe “memory” to include a black hole?
…and so on, and so on. Examiner, if you decide to leave the field of patent examination, I suggest looking into the literary field of deconstruction. You’ll like it.
We’re tipping past the point of sanity. I don’t want to have to define every term with 100 pages of boilerplate. And, Examiner, you don’t want that landing on your desk. And your SPE doesn’t want to have to review a bunch of final rejections based on arguments that “computer” and “memory” are undefined and can therefore include bizarre combinations.
– David Stein
“The only way applicant can attempt to prove something isn’t in X is by arguing it (usually all the way to the BPAI), which may or may not be successful (and in my experiences has almost always been unsuccessful).”
Thanks, Examiner. This is a useful reminder. I expect it to be ignored.
David Stein says:
“While your logic for proving the open-endedness of “X is at least 3″ is flawless, it’s analogous use is fundamentally misapplied and has no bearing on my argument, as you misinterpret my argument as being the first case is presumably true over the second.”
But that WAS your argument. Here is your earlier statement:
“The existence of the possible language in the specification evidences the fact that other interpretations by a PHOSITA could be reasonable.”
“Evidencing” means “lends credibility to,” i.e., makes more possible than not. I strongly disagree. It PERMITS that possibility, but it does not promote it.
==
Unfortunately my attempts at misdirection were circumvented. Here’s a better argument you should have made…
Let Z be the set of all valid definitions for the term M. Assume Z = (A, B, C).
Applicant’s spec can truthfully state “M can be A”. This does not imply that B and C are reasonable definitions, and if they are the only other possible definitions and are not reasonable, then the only reasonable definition is, in fact, A.
Mathematically and logically you win the argument. However, in patent-land here’s how things work…
The examiners are required (by the MPEP) to add definitions to the set Z, with two constraints.
1. An element of Z must also be in the set Y, where Y is the set of all possible definitions for M that are consistent with the specification.
2. And an element of Z must also be in the set X, where X is the set of all possible definitions that are reasonable by a PHOSITA.
So Z is the intersection of Y and X.
When looking at Y, you can see that applicant has complete control over Y. If you explicitly define a term in the spec, you can limit what is in Y. If, however, you solely use possible language, and provide no explicit definition, then Y is an infinite set. That happens for the majority of all applications I see.
When looking at X, applicant has very little control over what is and is not in the set. Unfortunately (or fortunately), the examiner crafts what is and is not in X, and it changes over time. The only way applicant can attempt to prove something isn’t in X is by arguing it (usually all the way to the BPAI), which may or may not be successful (and in my experiences has almost always been unsuccessful).
Carry on.
It’s not absurd to consider a human being as a vehicle. Some commenters apparently do not like drafting applications. Not many people do, frankly. They can be exercises in extreme frustration, especially when the client is demanding that the spec include language to support very broad claims and very narrow claims.
Most prosecutors would rather simply insert some language into their spec limiting a vehicle to a mechanical vehicle rather than engage in meaningless sophistry before the Board as to whether some broad claim interpretation is “absurd” or not.
Well, I have learned something in this thread. I will add language in my spec that excludes all ridiculous interpretations of claims terms (e.g. a computer being a human) and won’t use the “may” language when describing the structure of the computer.
If you say āthe device has at least three legsā in a patent claim, you are clearly and deliberately saying that that the utility of the device requires that it has no less than three legs and will function usefully with three or more legs. If prior art shows a device that is otherwise identical, but with four legs, you shouldnāt be able to limit the claim to only three legs (or at least, you certainly shouldnāt be able to argue that three legs is non-obvious over four legs), unless you already had a dependent claim specifying only three legs, or the application otherwise provides an indication that a three-legged embodiment is particularly to be preferred.
The statement āa tripod has at least three legsā is NOT true. Its clear meaning is that a tripod can have three or more legs, which is plainly untrue. A tripod always and only ever has exactly three legs (or three feet, for the truly pedantic ā itās right there in the etymology). Thatās the whole point of a tripod ā three legs/feet will always be stable on an uneven surface (OK, within limits). Any more or less will not.
breadcrumbs wrote:
“…but in the present discussion doesn’t the mere fact that the claim preamble save the claim from a Bilski death necessarily breathe life and meaning into the claim?”
Merely specifying “computerized” doesn’t save it from Bilski, anyway, as this does not tie the claim to a “particular” machine.
– David Stein
…but in the present discussion doesn’t the mere fact that the claim preamble save the claim from a Bilski death necessarily breathe life and meaning into the claim?
Oh, last point… An Examiner wrote:
“With regard to 101 issues, we’re essentially arguing whether vague terms like ‘computerized’ inherently impose structure upon the claim. As you can probably tell, my stance is the following: Yes, if you explicitly define ‘computer’ in the spec as something structural. No, if you use wiggle language.”
In fact, I agree with the outcome, Examiner. I don’t think a method is properly tied to a computer (either pre- or post-Bilski) simply by calling it “computer-implemented.”
However, I disagree with your tactic. Broad terms are acceptable claim language, and I think that you’re arbitrarily choosing a term and giving it a ridiculously expanded scope in order to achieve a desired claim construction result. This isn’t the proper methodology for interpreting claim terms, and I doubt that argument will win the day.
A much stronger argument is available, Examiner, that reaches the same result. A preamble term is only limiting if it “breathes life and meaning” into the claim, right? The way that I interpret this phrase is: “how does the preamble term interact with the body of the claim?” Or: “if you remove the term from the preamble, does the rest of the claim still operate in the same way?”
In your case, there is no interaction between the term “computerized” and the rest of the claim. The claim is for a method that solves a problem in a logical manner, and the preamble deems to limit this whole thing to a “computerized” environment. If one removes the term “computerized,” the solution still makes perfect sense. You have a very strong argument that this term does nothing to “breathe life and meaning” into the claim, and is non-limiting; and without it, the claim dies under Bilski.
– David Stein
An Examiner wrote:
“While your logic for proving the open-endedness of “X is at least 3″ is flawless, it’s analogous use is fundamentally misapplied and has no bearing on my argument, as you misinterpret my argument as being the first case is presumably true over the second.”
But that WAS your argument. Here is your earlier statement:
“The existence of the possible language in the specification evidences the fact that other interpretations by a PHOSITA could be reasonable.”
“Evidencing” means “lends credibility to,” i.e., makes more possible than not. I strongly disagree. It PERMITS that possibility, but it does not promote it.
===
“Every step of the method in claim 1 can be performed by a human. A ‘vehicle’ can also be defined as ‘a carrier of something’. Is it reasonable to interpret ‘vehicle’ as a human?”
Well, I get your general point: by using the open-ended term “vehicle,” the applicant has created the possibility (though not the probability!) that more items than simply cars are included.
What you mean is that, if undefined by the applicant, the term “vehicle” is to be given its broadest reasonable interpretation in the art. Of course, I agree with that, and the question becomes what a PHOSITA might consider a “vehicle.” That term indisputably includes a wide range of objects: bicycles, scooters, wagons, boats, aircraft, rocket ships…
I disagree that a human being can reasonably be considered a “vehicle.” You’re basically stretching the term to include every object that (1) can move and (2) can, in some way, carry another object. Isn’t this every object in existence above the subatomic particle size? Bacteria are “vehicles” for hosted bacteriophage viruses, right? In semiconductors, ion beams are often formed that carry along other particles for implantation in a wafer – the atoms comprising the ion beam are “vehicles,” right?
You can’t simply take a term, look up the dictionary definition, and then cram in every possible manifestation of that definition – this results in stretching the term to the point of absurdity. That’s why the broadest REASONABLE interpretation is used.
Along the same lines – when you ask anyone in the art of computing to describe a computer in the most basic terms, they’ll talk about the components of a circuitry-based machine. They’ll talk about a processor, some memory, and an electrical power source; about input and output devices; about programming languages and techniques. And all of those features have nothing to do with an organic brain.
– David Stein
Dave Stein:
While your logic for proving the open-endedness of “X is at least 3” is flawless, it’s analogous use is fundamentally misapplied and has no bearing on my argument, as you misinterpret my argument as being the first case is presumably true over the second.
Let me recap my argument: The use of possible language in the spec proves that the possible definitions/embodiments in the spec are not the only reasonable interpretation by a PHOSITA that is consistent with the specification.
Here, let me give you a better analogy to work with…
Claim 1: A vehicular method comprising:
moving in a certain direction;
identifying an object in the path;
adjusting the certain direction such that the object is not hit.
The spec says: The method described can be implemented with a vehicle. A vehicle can be a car that has an engine and a transmission.
Every step of the method in claim 1 can be performed by a human. A “vehicle” can also be defined as “a carrier of something”. Is it reasonable to interpret “vehicle” as a human?
With regard to 101 issues, we’re essentially arguing whether vague terms like “computerized” inherently impose structure upon the claim. As you can probably tell, my stance is the following: Yes, if you explicitly define “computer” in the spec as something structural. No, if you use wiggle language.
Malcom, you still haven’t provided an intelligent response to David’s post of 6:07 PM (Classen v. Biogen). Should I bookmark this post and have it ready to submit to the blogs whenever you dredge up your cookbook-pieces of paper logic, or will you actually have something intelligent to offer (or better yet, acknowledge that your argument is groundless and dispense from ever using it again)?
Still waiting for you to put up.
The fact is that if you write a claim reciting “wherein X is at least 3” and the Examiner finds art “wherein X is 4”, then your claim is toast and your wanking will get you nowhere. You will never be able to convince any adult human with a functioning brain that “wherein X is at least 3” should be construed by A PHOSITA to mean “wherein x cannot be more than 3 and therefore is 3.”
But I can imagine some folks insisting on making that argument and sticking to it. And I can imagine those folks concluding, after being told by an authority to stop playing games and write a decent claim, that the authority had “an agenda to deny them their rights.” Yes, that is quite easy to imagine, unlike, say, a robot chef that can understand instructions on paper which is so ridiculous that it belongs in the realm of magic.
David Stein-
Thank you for the clarification. I agree.
smashmouth wrote:
“‘Stating ‘X is at least three’ only means that X cannot be less than three. It does not mean X can also be more than three.’
That doesn’t make sense to me.
X>=3 -> X=3 OR X>3
so X can be more than 3, but it doesn’t have to be, nor is there a presumption that it is.”
What I meant (and hopefully illustrated in the rest of my post) is: there is no presumption whether or not X can be more than three. Two possible cases exist:
(1) X can be more than three (and in fact may be more than three, or may be three), or
(2) X cannot be more than three, and therefore is three.
An Examiner’s position was that with open-ended language, the first case is presumably true over the second case. I think that the ordinary mechanics of claim interpretation hold that neither is more likely or presumed over the other.
– David Stein
“I’ve been studying and practicing substantive patent law for a long time,”
LOL
wite “your lack of knowledge regarding substantive patent law”
Keep digging, wite. I’ve been studying and practicing substantive patent law for a long time, paying close attention to politics for a lot longer, and debating issues with my fellow humans on the internets for as long as it has existed.
Here’s the most important thing I can tell you about substantive patent law. Are you sitting down? [drum roll………]: it changes.
Yes, that’s right. It changes. Like all “substantive law” changes. And particularly because so much of patent law is administratively executed, it is very responsive to how the public responds to its decisions. And when I say the “public” I don’t mean the “patent bar” and the privileged minority who exploits the system. I mean the public. And as you must understand that when it comes to patents, those folks on CAFC and on the Supreme Court are more in tune with the public than they are with troll-chasing litigators, their clients, and/or multinational companies trying to claim methods of recommending zit lotion products using a powerful computer brain.
And why should it be otherwise? Anyway, just trying to give you some perspective here because, frankly, you seem to have to lost all of yours.
wite “What I find “repugnant” is the USPTO’s failure to follow long established law.”
When did the USPTO begin failing to follow “long established law”?
Seems to me that they haven’t been following it for years. But I don’t recall you complaining about it until very recently.
“I also find you, Mr. Mooney, to be repugnant.”
That isn’t a very measured response.
“The evidence I’ve seen suggests that obtaining an allowance on a computer-related patent application is far more difficult than applications in most other technologies”
Is that evidence collected before or after the USPTO began failing to follow long-established law, in your opinion?
“I don’t find anybody making a claim to particular subject matter “repugnant” when that subject matter has been allowable for at least a couple of decades.”
Can you tell me what law “established for decades” Becker could reasonably have been relying on to justify patentability on the day he filed his fault detection claims 1 and 30? Focus your answer on 101, 103, and especially 112, please.
“And lawyers never use profanity.”
I don’t recall a lawyer ever using profanity when establishing their bona fides as an attorney and as a professional.
Since this message board is mostly anonymous, the only way one can determine whether a particular poster is an attorney or a poseur is by what they write and how they write. Based upon what you have written (e.g., your lack of knowledge regarding substantive patent law) and how you have written (e.g., your continuous use of scatalogical references), I find it difficult to believe you are an attorney.
You pobably have had a greater exposure to law than most, but being sued for patent infringement does not make one a patent attorney.
“Second of all, the hypocricy stinks. Business method and softare and computer-implemented method applicants have been treated like baby princes and princesses for years by the PTO. You got fat. You broke your playpen. Now you cry that it’s all so unfair.”
The evidence I’ve seen suggests that obtaining an allowance on a computer-related patent application is far more difficult than applications in most other technologies, and this has been true for a great many years.
“What about when patent claims are issued in a manner inconsistent with the law? What about when patent applications are filed in manner inconsistent with the law?”
They get rejected. There is a reason why the “examination” process exists. The expectation is that not all applications meet statutory requirements. This is true not only for the USPTO but for many other Federal and State agencies.
I don’t find anybody making a claim to particular subject matter “repugnant” when that subject matter has been allowable for at least a couple of decades. An Applicant should be able to rely upon long-standing case law. This is one of the pillars of a common law system. What I find “repugnant” is the USPTO’s failure to follow long established law. I also find you, Mr. Mooney, to be repugnant. If you really are an attorney, you are a disgrace to the profession.
wite: ” you should seriously think about going to law school.”
Truly asinine and dull. Unless it’s changed since I graduated, law school is filled with 22 year old girls and boys who never worked a real job and who became lawyers because science was too hard or they didn’t get into a good medical school. Blech. Never again.
“those that tend to profanity are far more prone to being unhinged”
Right. And lawyers never use profanity. Please take a hike to the grocery store (watch out for all the unhinged clerks there!!!!), buy some bleach, and remove the puritanical streak. It got stale around 1724.
“Did someone say ‘pomp0us’? Geebuz fricking cripes on a crackbat, can you be more unhinged?”
If that is your best response, perhaps you should seriously think about going to law school. Assuming you get in, you will be exposed to case law, be taught how to think on your feet using logical analysis, and you will be able to expand your vocabulary.
Until such time, you should leave the discussion of law to lawyers. By intruding into this thread, the only thing you achieve is your own embarressment.
My experience has been that those that tend to profanity are far more prone to being unhinged than those that can disagree without being disagreeable.
David Stein said-
“Stating “X is at least three” only means that X cannot be less than three. It does not mean X can also be more than three.”
That doesn’t make sense to me.
X>=3 -> X=3 OR X>3
so X can be more than 3, but it doesn’t have to be, nor is there a presumption that it is.
On another topic in this thread, isn’t the reason for open-ended language in the spec to capture future infringers when the underlying technology (not the invention per se–in this example, the “underlying technology is a “computer”) changes in an unanticipated or previously unknown manner? I recognize there is always a trade-off here and the disclosure must satisfy 112 (otherwise the public doesn’t get its part of the bargain), but it seems to me that the reluctance of the applicant to nail herself down too particularly is understandable. I doubt anybody tells a client to rely on the doctrine of equivalents.
Anyway, in general I appreciate your measured comments, especially in the face of some of the abuse to which you’ve been subjected.
“your hypothetical does not provide sufficient information to support such an interpretation consistent with the discussion on this thread.”
LOL. In other words, just as predicted: “we are entering another one of those topic areas where you aren’t ever going to say what your position is.”
Pathetic.
“When patent applications are rejected in a manner inconsistent with the law”
First of all, a friendly reminder: it’s just your opinion. I don’t share it. I’m entitled not to share it.
Second of all, the hypocricy stinks. Business method and softare and computer-implemented method applicants have been treated like baby princes and princesses for years by the PTO. You got fat. You broke your playpen. Now you cry that it’s all so unfair.
What about when patent claims are issued in a manner inconsistent with the law? What about when patent applications are filed in manner inconsistent with the law?
Certain jokers here get riled up only when their precious turf is threatened. The fact that their peers are filing reams of (oh hello, since you brought it up) “repugnant” claims left and right, and managing to get some past the PTO in total contradiction of “the law” is just fine. Some of you can’t even bothered to admit that it’s happening. Some of you won’t even admit that computers can read. That’s a sickness, friends.
“I find Mr. Mooney’s excuse of the abuses of the USPTO both repugnant and very dangerous. I cannot see how Mr. Mooney could have graduated law school and not have retained at least a modicum of respect for the rule of law and due process. Any properly trained attorney would be offended by his attitude towards the law. Also, it is attitudes like those of Mr. Mooney, in which due process and the rule of law are allowed to be jettisoned for expediency, that are extremely dangerous to a free society.”
Did someone say “pomp0us”? Geebuz fricking cripes on a crackbat, can you be more unhinged?
Noise Above the Law,
My thanks to you as well.
Where is the evidence,
Thanks, couldn’t have said it better myself. At somepoint, I grow weary of wasting electronic ink on MM.
“Malcolm, the ‘why’ is unimportant. The ‘How’ is extemely important. Mis-applying the Law is the critical point.”
Extremely well said. It is easy to rhetorically ask “why do we need a trial to electrocute the murderer of a dozen children when there were 20 witnesses since a trial will only delay the inevitable.”
In an ideal world, just like all people should receive fair trials, all patent applications should receive fair examinations. One should not excuse the disregard of the rule of law and due process because the ultimate end result will not change. A “pile of crxp” should fall on its own merits based upon properly applied law.
I find Mr. Mooney’s excuse of the abuses of the USPTO both repugnant and very dangerous. I cannot see how Mr. Mooney could have graduated law school and not have retained at least a modicum of respect for the rule of law and due process. Any properly trained attorney would be offended by his attitude towards the law. Also, it is attitudes like those of Mr. Mooney, in which due process and the rule of law are allowed to be jettisoned for expediency, that are extremely dangerous to a free society.
The reason “why” a patent application is ultimately rejected and abandoned is not the ultimate issue. However, “how” the patent application came to be rejected is the critical issue we are discussing. When patent applications are rejected in a manner inconsistent with the law, everybody loses, even if the patent application ultimately should have been rejected.
“Let me get this straight. If I file an application directed toward a method of displaying a picture of a dipstick on a screen and I define a “screen” by saying the “the screen can by any screen understood by those in the art, including, but a computer screen”, I should be able to argue (e.g., in response to an obviousness rejection) that I’m not a PHOSITA and a PHOSITA would understand that a screen is only a computer screen?”
First off, your proposed statement is overly verbose. One way of writing your proposed statement would be “the picture of the dipstick can be displayed, for example, on a computer screen.”
Even if the claim recited a “screen” (a term I would not use — a “display” would be better), the Examiner should not be able to refer to a picture painted on a screen door or a privacy screen, as examples. However, a picture displayed, using, e.g., a projector, on a movie screen could be considered a display on a screen.
Your reference to arguing that “I’m not a PHOSITA” doesn’t make any sense. The claim terms are interpreted in view of a PHOSITA. It does not matter whether Applicant is a PHOSITA or not.
There are circumstances in which a picture (of a dipstick) on a screen door or privacy screen could be considered as disclosing displaying a picture of a dipstick on a screen. However, your hypothetical does not provide sufficient information to support such an interpretation consistent with the discussion on this thread.
“who cares why it gets crushed?”
Malcolm, the “why” is unimportant. The “How” is extemely important. Mis-applying the Law is the critical point. How can you not understand this?
Additional evidence of the interpretation of open-ended language – here’s how MPEP 2111.03 defines open-ended transitional phrases:
“The transitional term ‘comprising’, which is synonymous with ‘including,’ ‘containing,’ or ‘characterized by,’ is inclusive or open-ended and DOES NOT EXCLUDE additional, unrecited elements or method steps.” (emphasis added)
“Does Not Exclude.” Thus, unrecited options are possible. However, there is no PRESUMPTION that the unrecited additional options are included. They are not tacitly included. It’s simply an open, unanswered question.
The open-ended language “X is at least 3” doesn’t exclude the possibility that X > 3. However, it doesn’t create a presumption that X can be greater than three. If X must be exactly three, “X >= 3” is neither false nor misleading.
– David Stein
An Examiner wrote:
“And unless your specification states that the method requires a machine based computer, I’d be willing to take you to the board over it.”
I’d be willing to go to the Board with you over whether or not “computer” inherently means machine-based, unless more broadly defined by the applicant.
The only times I’ve ever encountered qualifiers for the term “computer” were where the peculiar context of the discussion explicitly included organic processing. Similarly, in computer science, when we discuss a “neural network,” we inevitably mean an “artificial neural network,” and not an “organic neural network.” It’s customary to drop the term “artificial” when it’s clear – as it virtually always is – that we’re discussing the programming of a (machine-based) computer to express intelligence.
Consider how the USPTO uses the term “computer.” Consider the USPTO’s own “Examination Guidelines for Computer-Related Inventions” … this title is definitely limited to “computers” involving circuitry, and yet the title is not “Machine-Based Computer-Related Inventions.”
Must I have to start explicitly defining “memory” as also comprising circuitry, and not a memento like a photograph, or a clump of neurons storing a piece of information? Must I define “keyboard” as a board with touchable portions representing symbols, and not the dinky musical kind made by Casio? Must I define “mouse” as… well, it’s too easy.
Frankly – the day someone convinces me that I must explicitly define the ordinary term “computer” as “not a human brain” is the day that I decide that the entire field has become silly and hopelessly pedantic, and start looking for another line of work.
===
“I’ve got cases queued for the BPAI right now because applicant ‘defines’ terms using possible and negative language. Can you define a ‘car’ as ‘something that doesn’t fly’?”
Of course not, and I agree with you on that. But I don’t see how that’s relevant, since no one has tried to define “computer” by something that ISN’T a “computer.”
===
“Furthermore, the existence of the possible language in the specification evidences the fact that other interpretations by a PHOSITA could be reasonable.”
Ummm… really?
Open-ended, positive language does exactly one thing: it denies the converse. Stating “X is at least three” only means that X cannot be less than three. It does not mean X can also be more than three. That aspect of X is possibly true, but possibly false; neither aspect is more probable or presumably true than the other.
A tripod has at least three legs. Of course, by definition a tripod also has AT MOST three legs, and something that has MORE than three legs isn’t a tripod. Does that make the first statement not true? It would not even be reasonable to assert that “tripods” include four-legged assemblies.
– David Stein
EG “By the appropriate standard (not Bilski’s test), what’s claimed by Becker and Barnes is not an “abstract idea, natural phenomena or law of nature,”
EG, pleaes understand that merely saying something is so does not make it so. Nobody, not even the most rabid patent peddlers out there, believes that you have to LITERALLY and EXPRESSLY claim “an abstract idea” as your invention in order for it to be rejected under 101.
That’s what folks just don’t seem to get. You can’t turn a pile of crxp into a statutory claim with magic words. It doesn’t work. The law is that the Examiner or the Board or the Judge is permitted to see right through unreasonable insignficant jibber jabber added to a bogus claim solely in order to (allegedly) render it statutory.
And why not? That is my question. Why the hell not? If it’s crxp, who cares why it gets crushed? I’m still waiting for somebody — ANYBODY — to step up and defend any of these appealed claims as valid claims that should be granted. They are worthless. And there are a lot more that are worse and they are clogging up the system.
Wise people will figure out how to write better claims. Stoopit people will continue to pixx in the wind.
Dear where is the evidence?
I.e., I agree.
Let me get this straight. If I file an application directed toward a method of displaying a picture of a dipstick on a screen and I define a “screen” by saying the “the screen can by any screen understood by those in the art, including, but a computer screen”, I should be able to argue (e.g., in response to an obviousness rejection) that I’m not a PHOSITA and a PHOSITA would understand that a screen is only a computer screen?
Is that the position?
Or are we entering another one of those topic areas where you aren’t ever going to say what your position is except that the PTO isn’t granting enough of your patents therefore it has an agenda to hurt you?
I hope it’s not the latter.
So if a computer implemented process includes displaying a score, does the BPAI posit that the computer could be printing the score on paper, which eludes to the printed matter exception?
Kind of makes me glad I kept drafting those dependent claims to displaying the result on an active display.
Dear where is the evidence?
Re: āThe applicant is at least a PHOSITA, by definition.ā
Not that I’ve been following this thread, but, not so!, according to:
ā35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. PATENTABILITY SHALL NOT BE NEGATIVED BY THE MANNER IN WHICH THE INVENTION WAS MADE.ā (emp. added)
“The evidence is in the specification, just as An Examiner told you. The applicant is at least a PHOSITA, by definition. If the applicant leaves his definitions open-ended, then the applicants is admitting that the term is open-ended.”
Are you a really an attorney?
1) An Applicant is NOT a PHOSITA, by definition as you have asserted. If you want to stand by your statement, please provide the case law upon which you rely upon for this “definition.”
2) An open-ended definition does not give the Examiner a license to come up with any claim construction the Examiner deems fit. I suggest you review the Federal Circuit cases of In re Morris and In re Cortright, among many others.
The requirement for evidence is what separates the U.S. legal system from a kangaroo court. Unfortunately, a kangaroo court is what the USPTO has become.
MM,
Again, I’m going to make an exception to responding to your drivel because it completely misses the point, as you generally do on the subject of what potentially qualifies under 35 USC 101. I’m not talking about the “ultimate” validity of what Becker and Barnes claim. Instead, I’m talking about whether those claims qualify as a potential “process” or “machine” under 35 USC 101. By the appropriate standard (not Bilski’s test), what’s claimed by Becker and Barnes is not an “abstract idea, natural phenomena or law of nature,” and thus meets the criteria of 35 USC 101. Whether what’s claimed by Becker and Barnes meet the requirements of 35 USC 112, 102, and 103 (the merits of the claimed invention which should be the primary criteria for determining validity) is a completely different story.
“The applicant is at least a PHOSITA, by definition.”
Um, no.
“Is applicant not a PHOSITA?”
That question brings with it its own answers.
I think it was probably correct to deny a patent in this situation as the invention dident involve a creditable or integritious business method. A method of hedging comodities is esentially gambling with investors money so no patent granted is good.
wiste “where is the evidence that your interpretation is consistent with the interpretation that those skilled in the art would reach?”
*sigh*
The evidence is in the specification, just as An Examiner told you. The applicant is at least a PHOSITA, by definition. If the applicant leaves his definitions open-ended, then the applicants is admitting that the term is open-ended. You don’t get to have it both ways and argue later that, in spite of what the applicant put on the record, the term should be limited because the applicant is a dipshxt.
By the way, EVERY time this bogus argument by whereistheevidence comes up here and I check out the spec to see if helps out the crxp claims, it doesn’t. It makes it worse.
The bottom line (again) is that software and computer-imnplemented patent applications are among the worst of the worst applications that exist. It’s a field that the PTO has coddled since its infancy. It’s a field that hasn’t grown up, patently speaking.
It’s time to flush the pacifier down the toilet and burn the security blanket. Dry your tears, sonny. If you’re sharp enough, you’ll find plenty of other ways to put food on the table.
“Furthermore, the existence of the possible language in the specification evidences the fact that other interpretations by a PHOSITA could be reasonable.”
Great!!!! But where is the evidence that your interpretation is consistent with the interpretation that those skilled in the art would reach?
Too many “broadest reasonable interpretations” at the USPTO are interpretations that only exist within the confines of the USPTO’s Alexandria campus. Just because an examiner can think of some alternative interpretation that could be plausible does not make it consistent with the interpretation that those skilled in the art would reach.
A rigorous application of administrative law at the USPTO would cure this problem, but the USPTO has been above the law over the past few years.
At Anon + David Stein:
You can argue all day that my earlier interpretation of “computerized method including a processor” was inconsistent with the specification and would be unreasonable by a PHOSITA.
But alas, specs these days are poorly written. And unless your specification states that the method requires a machine based computer, I’d be willing to take you to the board over it.
We both know your spec would never say such a thing, though. It will say something similar to “the method may/might/could/can be performed by a computer, including a microprocessor and computer memory, RAM, etc.” and go on describing a stereotypical computer. The key word being the possible language.
I’ve got cases queued for the BPAI right now because applicant “defines” terms using possible and negative language. Can you define a “car” as “something that doesn’t fly”? Is saying “a car may be a Honda civic” mean that your claimed “car” must be a Honda Civic? No.
Furthermore, the existence of the possible language in the specification evidences the fact that other interpretations by a PHOSITA could be reasonable. If applicant recognizes that the method “can” be performed by a machine-based-computer, then applicant recognizes it might not potentially be performed by a machine-based-computer, otherwise applicant would have stated it “must be” performed by a machine-based-computer. Is applicant not a PHOSITA?
š
EG “Once more, the Becker and Barnes cases point out the absurdity of the “machine or transformation” test of Bilski,”
No, they don’t. They point out the absurdity of worrying about the fate of claims that are so meritless they make reasoable people who aren’t invested in gaming the patent system puke their guts out.
Barnes recites “at least a module component operable to generate a tehcnological functionality.” That right there is enough to toss the patent application in the garbage. Barnes should be glad that the PTO is offering him any explanation for tanking that garbage.
And yet here are people complaining about the PTO’s logic?!?!? What possible legal defense could exist to defend the validity of such claims?
Ex parte Becker, and Ex parte Barnes particularly demonstrate why the BPAI’s application of the holding in Bilski is troublesome, and why the “machine or transformation” test of Bilski provides no logical test for objectively determining issues under 35 USC 101, but is simply an arbitrary and capricious test. For example, Claim 30 in Becker defines the “fault identification method” as comprising the steps of “determining discontinuity values from seismic data” and then applying analysis to those values to “identify faults.” But for the misapplication of Bilkski, why isn’t at least Claim 30 a “process” under 35 USC 101? In Barnes, Claim 1 defines an “automation system” comprising “at least one automation object” having a “third component to manage at least one module” where each module comprises “at least a module component operable to generate a tehcnological functionality.” But for the misapplication of Bilkski, why isn’t Claim 1 either “machine” or “machine process” under 35 USC 101.
Once more, the Becker and Barnes cases point out the absurdity of the “machine or transformation” test of Bilski, and how it is then being misapplied by the PTO, and the BPAI in particular, to artificially reject patent claims other than on the merits (35 USC 112, 102, and 103). If the Federal Circuit doesn’t reign in this Bilski-generated nonsense soon from the BPAI, we’re going to have a colossal mess in the area of what “patentable subject matter” is (or should mean) under 35 USC 101. Frankly, Judge Newman got it right, and the Federal Circuit majority got it very wrong, in Bilski.
Mooney is a rope-a-dope act. He gets bashed and bashed and still he will come back with the same arguments time and time again. He has 3 main goals posts he shifts between as he bashed: Bad patents, not the law, and don’t need patents anyway.
Unfortunately, Mooney is a good representation of the current state of the Fed. Cir. judges and the PTO. No one who is serious about applying the law need apply. We have a hidden agenda (not so hidden really) and we are going to lynch those software patents no matter what the law. We haven’t seen the back of George Bush yet.
The problem with our patent system is that they have issued 7 million patents that are unmarketable. Of the 20-30 thousand good marketable inventions, they either refuse to grant a patent or they issue the patent to the wrong person, or after the first patent expires, they re-issue the patent to the same or a different wrong person. This destroys the incentive to create by allowing inventors to believe their brilliant inventions will not be compensated therefore there is no reason to create.
The main problem with our patent system with regards to what patents to issue and what patents not to issue is that they have issued 7,000,000 patents on unmarketable items. Of the 20-30 thousand marketable items, they either refuse to issue a patent or issue the patent in the wrong name. Then subsequently re-issue the patent the second time in a different wrong name.
“Why drag e6k and John Darling into this?”
So says the guy who’s posted 23 of the 72 comments thus far.
You’re funny. Not serious. But funny.
“Didn’t MM mean that oil will be found whether patentable subject matter or not?”
That’s what Chavez said, too. It works for a while.
Mooney talking about earthquakes shows how much he knows about what he’s talking about. Mooney opining on the Barnes claim is like a monkey critiquing a novel.
Emily,
You just don’t understand.
Back at computer “science” school, the professors used to give out free rolls of infinite Turing tapes all the time.
And also, free energy/ infinite speed tape players. You see, without those infinite speed tape players, it would take, well, almost forever to get from one spot to the next on our Turing tapes.
But heck. I still understand way more about “software” than all you whining patent lovers. Software is Turing complete. It’s that plain and simple. All software is obvious. Everything you’ll ever need is already in Knuth’s book of fundamental principles. Ergo there should never be any patents handed out for software.
Once upon a time I worked at a company that paid me to be a patent basher and troll on this patent law blog site.
Oh wait. I just got another pay check from the same company. How come? I don’t do that stuff anymore. Honestly. It’s not me.
Anyway. As I was saying … Software patents and business method patents are just plain evil, especially the ones asserted against that company I used to (cough, cough) work for.
“All you need is a Turing machine with an infinite roll of tape…”
I am seeing this a lot, where do I get some of these infinite rolls of tape?
Oh wait, this is merely an abstraction…
“Never mind”
JTS makes some very good points.
“Seismic processing software is used for finding oil and gas”
Thanks for clarifying. If anything, that makes my argument above even more potent, as one previous commenter appears to have noticed.
“It is a difficult field”
I hope that’s not an attempt to excuse this particularly weak attempt at claim drafting.
“Once upon a time, I worked at a company where on odd weeks I had to go to the stockroom.”
No wait, it was the french fry line, and it was and still is every day.
“There was a guy who worked there who was a little “off”. Sometimes he’d argue with people that nobody could see. I guess they were in his own head. Most of the time, he won.”
Oh wait, that was just me.
No it wasn’t.
Yes, it was.
Didn’t MM mean that oil will be found whether patentable subject matter or not?
Mooney wrote:
“When a company can demonstrate that it (or its machines) are capable of predicting earthquakes more accurately than any other company, that company’s services will be in great demand. That company will make money. That’s real competition.
Still waiting for someone to defend that PARTICULAR claim on its “merits.” Does anyone want to argue that a claim like Barnes’ should be patentable?”
Mooney sure is quick to pass judgment on the substantive patentability (102/103) of those Barnes claims. Seismic processing software is used for finding oil and gas, not for predicting earthquakes. It is a difficult field, and along with nuclear weapon research and weather research it’s one of main users of cutting-edge massively-parallel computing. But no worries, Mooney can find that oil, no problem. He knows where it is. Under the earthquakes.
step back wrote:
“”By the way, what can’t be represented by a string of 0’s and 1’s?”
“That’s easy. The precise value of Pi. Or any other irrational number.”
Hmm… well, those aren’t directly representable as a string of 0’s and 1’s representing a floating-point number – it’s true. However, one can easily generate 1’s and 0’s representing a set of instructions that, when carried out, result in such numbers. All you need is a Turing machine with an infinite roll of tape…
Just sayin’. š
– David Stein
“one or two people who love their own opinions (and share them incessantly) drive the signal-to-noise ratio so high that the forum dies out.”
Why drag e6k and John Darling into this?
“To say that punch cards with one set of holes in them are no different than punch cards with other holes in them is to admit that you really really don’t get one iota of it.”
That’s nice. Nobody here ever said that, however.
Once upon a time, I worked at a company where on odd weeks I had to go to the stockroom. There was a guy who worked there who was a little “off”. Sometimes he’d argue with people that nobody could see. I guess they were in his own head. Most of the time, he won.
“Most people want free booze, drugs and sex. Algorithms are at the bottom of the list, really.”
If someone would come up with an algorithm to filter out messages from people who do nothing but blog all-the-day-long and therefore don’t know diddly, I don’t know where it’d fall on my list, but I’d be happy to have it.
And Dennis, if you’re out there, why don’t you have something to allow readers to filter out certain posters? It’s classic phenonema I’ve seen since first using the Internet in 1988; one or two people who love their own opinions (and share them incessantly) drive the signal-to-noise ratio so high that the forum dies out. As for myself, other forums are looking more like a place for adults these days… sainora.
Once upon a time, I worked at a company where on odd weeks I was assigned to the hardware department and on even weeks to the software department.
What amazed me most at the start of each shift, was how the members of one department disparaged those of the other and vise versa. Something like: ‘Give me a break. How hard can it be to do the nonsense that those guys in the other department do?’
I suspect that those who disparage software here probably work in the hardware side of things and have no clue as to how difficult and complex software can be.
To say that punch cards with one set of holes in them are no different than punch cards with other holes in them is to admit that you really really don’t get one iota of it. Why don’t you say in the same breath that chemical compounds with one subset of elements in them are no different than compounds with other element combinations? Or that all things that can be invented have been invented?
Actually, you probably have already said all those things too. Sheesh.
Night Writer Patent Attorney asks at Jan 27, 2009 at 07:24 PM:
“By the way, what can’t be represented by a string of 0’s and 1’s?”
That’s easy. The precise value of Pi.
Or any other irrational number.
However, theoretically on an analog computer, irrational numbers can be precisely represented as part of a continuim.
“Are new algorithms beneficial to mankind? Undoubtably.”
What percentage of new algorithms is beneficial to mankind, do you suppose?
“Are they hard to come up with? They can be.”
LOL. “Yorg werk hard like hors. Yorg wan patint fer hard werk. No patint for Yorg then Yorg no werk hard. Contree fall part. Yorg family die.” BWHAHAHHAHAHAH!!!!!
“Do we want more and better algorithms? Of course.”
Most people want free booze, drugs and sex. Algorithms are at the bottom of the list, really.
“So why should these people be precluded from the benefit of being able to patent their work?”
Great argument.
This trend is disturbing for some areas of innovation. Improvements to specific technologies (e.g., a router to better handle a specific protocol) probably will not have any difficulty. But there are folks out there whose time and energy is devoted to basic computer science research. I’m lucky enough to work with some of these people. They come up with smart and beneficial algorithms, things that can be applied to almost any form of computing… to any application. Under the current trend, it seems impossible that their work can be patented in any meaningful way.
Are new algorithms beneficial to mankind? Undoubtably. Are they hard to come up with? They can be. Do we want more and better algorithms? Of course. So why should these people be precluded from the benefit of being able to patent their work?
IF you accept the basic ideas of patent law as true… that public disclosure is worth the grant of exclusivity, that exclusivity incents innovation, and that people should be entitled to own as property that which they create out of nothing, then this whole Bilski thing is a cherade.
A computer is a blank slate. It’s an infinite variety of specialized machines waiting to be configured in just the right way. There’s no reason why innovations strictly within the confines of a generic computer should not be patentable.
If I were to invent a specialized circuit… hardwired… that performed a new sorting algorithm, and I claimed the circuit, it would not be a problem. Yet if I claim the same algorithm being performed on a general purpose computer, this is somehow significantly different? Bull! What’s the difference between that hardwired circuit and a computer? If I take that hardwired circuit and give it one switch, and the switch changes the properties of the circuit, does that make it a general purpose computer? How many switches does it take? A computer is just a bunch of switches. When those switches are arranged in the right way, the circuits they form perform very useful processes. But somehow because the medium for those processes is adaptable the processes are unpatentable?
The 101 approach of the BPAI points up the problems at the PTO in general (and among practicioners). There’s a real lack of technical expertise. To avoid the technical analysis necessary for substantive examination, the PTO is falling back on the open-ended gobbly-de-gook of Bilski. What a mess.
“The analogy between the placement and number of holes and an infomration processing machine is incorrect.”
I agree. Too bad it wasn’t my analogy.
Mooney’s “goalpost” consists only of a toilet seat. A truly low aimer.
“How many patents issued on punch cards that differed from prior art punch cards only in the placement and number of holes?
Keep moving the goalpost, bro’. I suppose I’d do the same if I were you. ”
Too late Malcom – you just did move the goalposts.
It just goes to show that Mooney’s garbage recommendations about a “communication step” would be deemed insignificant post solution activity. But since he is just pretending to be a patent guy, he wouldn’t have known that.
Let me post a claim completely out of context without benefit of the specification. I will then proceed to call it a sick joke and make all kinds of disparaging remarks about the attorney that wrote it.
Then when people call me the a$$hole that I am, I will whine about “vitriolic personal attacks.”
Its true, sadly, the only lame sick joke around here is me. And I might be a redneck.
Oh well, its off to another “order of the coitus” meeting.
By the way, what can’t be represented by a string of 0’s and 1’s?
>>ahem* The question was how many patents issued >>on punch cards that differed from prior art >>punch cards only in the placement and number >>of holes
The analogy between the placement and number of holes and an infomration processing machine is incorrect.
The analogy is between the physicl structure of the punch card machines which implemented a method of sorting and the information processing machine that implemented the same method of sorting. I think the name was radix sort.
An information processing machine, in the form of an electronic omputer can be built without the CPU architecture that would take the same form as the meachanical punch card machines.
You see, MM, another thing that Johnny figured out was that rather than building a giant machine that what we could do was make the machine run other machines. And, that is how modern computer programming and the invention of the modern computer architecture began.
Johnny’s genius has apparently confounded the Supremes who to this day seem to think that a computer program is an abstraction.
And it has apparently confounded MM as well who wants to exault form over function. Yes, an information processing machine can be represented by holes in punch cards and can be represented as a stand alone special purpose electronic information processing machine.
By the way, the placement and number of holes is probably best analogized to computer memory. I would image that the reader of the card was patented but not the cards.
But actually, your question brings up something very interesting. That is that what was being patented was the method of the machine. The infomration processing sort. And, why a method on a machine was permitted to be patented was because it was too easy to design around a patent that claimed the physical structure of the machine, so they had to allow method claims for the processing that was occurring on the machine.
They had most of it worked out long ago, and got it pretty much right.
“Actually, interestingly, if you read the patents, you will find that a lot of the innovation was how to sort the punch cards. And in effect, what was being claimed were algorithms for sorting the punch cards—and it didn’t matter what was on the punch cards. So, they were claiming information processing algorithms! And in fact the algorithms that the punch card machines ran were very similar to the first computer sorting algorithms. In fact, Johnny von Nuemann wrote a computer sorting algorithm on the first modern computer and ran a speed test with the top of the line IBM card sorter. ”
*ahem* The question was how many patents issued on punch cards that differed from prior art punch cards only in the placement and number of holes?
You may recall (but I understand how difficult this might be for you) that we were discussing what patents were needed for innovation to occur. Somehow the republic managed to innovate without thousands of punch card patents.
So once again: your red herring, not mine.