Bilski v. Kappos (Supreme Court 2009) (oral arguments)
The transcript from the hour-long oral arguments are available online here. The following is the five-minute version of the questions and statements that I found most interesting. They are a bit out-of-order.
JUSTICE SCALIA: Well, if the government says that the — that the term on which it hangs its hat is the term useful arts and that that meant, originally, and still means manufacturing arts, arts dealing with workmen, with — you know, inventors, like Lorenzo Jones, not — not somebody who writes a book on how to win friends and influence people. What is wrong with [the] analysis, that …”useful arts” … always was thought to deal with machines and inventions?
JUSTICE BREYER: You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. … And I could probably have reduced it to a set of steps and other teachers could have followed it. That you are going to say is patentable, too?
JUSTICE SCALIA: . . . Let’s take training horses. Don’t you think that — that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.
JUSTICE SOTOMAYOR: So how do we limit it to something that is reasonable? Meaning, if we don’t limit it to inventions or to technology, as some amici have, or to some tie or tether, borrowing the Solicitor General’s phraseology, to the sciences, to the useful arts, then why not patent the method of speed dating?
JUSTICE SOTOMAYOR: But a patent limits the free flow of information. It requires licensing fees and other steps, legal steps. So you can’t argue that your definition is improving the free flow of information.
MR. JAKES: . . . I think that we should go back to the first principles that were enunciated in Diehr and other cases, that abstract ideas per se are not patentable. That’s my position, and what I would advocate in this case and any case…
MR. STEWART: Well, I think the Court could say — could do essentially what was done in Benson and Flook, namely acknowledge that there had never been a case up to this point in which a process had been held patent eligible that didn’t involve a machine or a transformation. It could leave open the possibility that some new and as yet unforeseen technology could necessitate the creation of an exception.
MR. JAKES: [L]ooking at what are useful arts, it does exclude some things. It does exclude the fine arts. Speaking, literature, poems, I think we all agree that those are not included, and there are other things as well. For example, a corporation, a human being, these are things that are not covered by the statutory categories. . . . Now, the patent on the data, that’s another category that’s not included in the subject matter of those four categories. The data itself is not patentable, but if it is a series of steps, it should be eligible as long as it meets the other statutory requirements as a process.
CHIEF JUSTICE ROBERTS: Well, but your Claim 1 it seems to me is classic commodity hedging that has been going on for centuries.
MR. JAKES: Your Honor, if that were true, then we should run afoul of the obviousness provision under section 103.
JUSTICE BREYER: There are actually four things in the patent law which everyone accepts. There are two that are plus and two that are minus. And the two that are plus is by giving people a monopoly, you get them to produce more. As you said, you get them to disclose. The two minuses are they charge a higher price, so people use the product less; and moreover, the act of getting permissions and having to get permission can really slow things down and destroy advance. So there is a balance. In the nineteenth century, they made it one way with respect to machines. Now you’re telling us: Make it today in respect to information. And if you ask me as a person how to make that balance in respect to information, if I am honest, I have to tell you: I don’t know. And I don’t know whether across the board or in this area or that area patent protection will do no harm or more harm than good.
MR. STEWART: And you know, Justice Scalia, you mentioned how to win friends and influence people. I think at a certain level of generality you could describe both Dale Carnegie and Alexander Graham Bell as people who devised methods of communicating more effectively. The reason that Bell’s method was patentable was that it operated in the realm of the physical. Bell had devised a process implemented through machines by which sound was transformed into electronic current. The current was then transmitted over a distance and transformed back into sound. Innovations as to new techniques of public speaking, new techniques of negotiations, techniques that go to the substance of what is said may be innovative. They may be valuable. They are not patent eligible because they don’t deal in the realm of the physical —
JUSTICE SOTOMAYOR: How about if we say something as simple as patent law doesn’t cover business matters
MR. STEWART: I think that would be incorrect, and it would create problems of its own. . . . So to say that business methods were ruled out would itself be a fairly sweeping holding.
JUSTICE SCALIA: Also you could say business methods apart from machines are not patentable. How about that?
MR. STEWART: If the Court said that in the limited area of business methods, if there is no machine or transformation there is no patent eligibility —
CHIEF JUSTICE ROBERTS: Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say this is not –simply the method isn’t patentable because it doesn’t involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That’s like saying if you use a typewriter to type out the — the process then it is patentable. . . . that takes away everything that you spent 53 pages establishing. . . . [I]f you look at your footnote, that involves the most tangential and insignificant use of a machine. And yet you say that might be enough to take something from patentability to not patentable.
MR. STEWART: And all we’ve said is that it might be enough; that is, hard questions will arise down the road as to where do you draw the line, to what extent must the machine or the transformation be central —
CHIEF JUSTICE ROBERTS: So you think it’s a hard question. If you develop a process that says look to the historical averages of oil consumption over a certain period and divide it by 2, that process would not be patentable. But if you say use a calculator, then it — then it is?
MR. STEWART: I think if it’s simply using a calculator for its preexisting functionality to crunch numbers, very likely that would not be enough. But what we see in some analogous areas is that the computer will be programmed with new software, it will be given functionality it didn’t have before in order to allow it to perform a series of calculations, and that gets closer to the line. . . . I guess the point I’m trying to make is simply that we don’t want the Court, for instance, in the area of software innovations or medical diagnostic techniques to be trying to use this case as the vehicle for identifying the circumstances in which innovations of that sort would and would not be patent eligible, because the case really doesn’t present any — any question regarding those technologies.
JUSTICE KENNEDY: How would you come out in the State Street case today, if all of the arguments were made under your test?
MR. STEWART: Well, under our test, we would come out the same way because the computer would be a machine. The only question would be whether the programming of the computer with new software caused it to be a patentable different machine from the one that existed previously.
JUSTICE STEVENS: It’s not on a computer, which the only difference from the old computer is it’s using a new program. You can’t say that’s a new machine.
MR. STEWART: [The] PTO agrees … that programming a computer by means of software to produce — to perform new functions can create a novel —
JUSTICE BREYER: But then all we do is every example that I just gave, that I thought were examples that certainly would not be patented, you simply patent them. All you do is just have a set of instructions for saying how to set a computer to do it. Anyone can do that. Now, it’s a machine.
MR. STEWART: … we recognize that there are difficult problems out there in terms of patentability of software innovations and medical diagnostics.
JUSTICE KENNEDY: You thought we — you thought we would mess it up.
MR. STEWART: We didn’t think the Court would mess it up. We thought that this case would provide an unsuitable vehicle for resolving the hard questions because the case doesn’t involve computer software or medical diagnostic techniques, and therefore, we thought the Court would arrive at the position that I think, at least some members are feeling that you have arrived at, that you will decide this case, and most of the hard questions remain unresolved.
Nerode writes:
“The real problem in the EU comes in stuff like data encryption”
and:
“The EPO rulings are horrendously, fatally wrong on such matters.”
Sorry to be so obtuse but can we have some T numbers please? Which exactly are the TBA decisions that are so wrong?
And this is interesting. Is encryption technical, or not? Are the TBA decisions wrong because they find this “stuff” wrongly patentable, or wrongly unpatentable.
“It seems to me relatively simple to distinguish between a disc carrying a new song (unpatentable) from a disc carrying software that makes (say) images on monitor screens sharper (patentable). ”
The real problem in the EU comes in stuff like data encryption, where the patent is strictly on manipulation of bits — pure software, and software as such, and mathematics, by any mathematician’s or computer scientist’s assessment. Data compression, unless it is designed with an error-correction which is especially resistant to electromagnetic interference or something, is much the same.
The EPO rulings are horrendously, fatally wrong on such matters.
“Justice Breyer: If a US grade school teacher developed an innovative method to teaching 7th graders math (e.g., a specific, novel, innovative lesson plan) so 80% more student could do simple multiplication before entering high school, shouldn’t the teacher be able to obtain a patent assuming novel & nonobvious? Again, novel & nonobvious so doesn’t impact what teachers have done for centuries, they can keep on doing and even design around (easier with the doctrine of equivalence trimmed). However, for a limited time, they’d need a license from The Teacher to use the invention. Ok, education is not a good example but lord knows we need innovation there.”
Bleck. You actually think that allowing people to demand royalties for teaching methods could *improve* education? Wow. This is unbelievably uninformed economically. Teachers have a hard enough time without a bunch of warnings from the administration: “The following teaching methods are patented and we don’t have the budget for them, so don’t use them!”
Ned will want to see that.
btw Does anybody know why Morse patent 1647 was reissued three times? I agree with comments above, that claims 5 and 6 of reissue 117 should never have issued – they are copyrightable, not patentable, expressions. The rest of the reissued claims seem solid though.
The morse code question is great!
link to en.wikipedia.org
Look at those claim 2 of this one
link to tinyurl.com
2. The system of signs consisting of dots and lines, substantially as herein set forth and illustrated, in combination with the telegraph for recording signals.
Starts out ugly but then there is the machine.
The EBA? Tks for reminding me Trilithon. Readers, Ned, the EPO has a “tie breaker” mechanism called the Enlarged Board of Appeal. But it’s not like SCOTUS. On it sit the biggest cheeses from those 21 Technical Boards of Appeal I wrote about. With their EBA hats on, they impose order on themselves (and incidentally on all those Supreme Courts out there, in the 36 Member States of the European Patent Convention). Neat, eh?
Thanks Max. You probably know me better than you think – my pseudonym changes according to whim (but you won’t find me arguing with or supporting myself under different guises).
Don’t forget the EPO’s Enlarged Board of Appeal
MaxDrei, you raise a fundamentally sound point about the 21 Technical Boards of Appeal and the lack of one superior court. In the US, before the Fed. Cir., we had about a dozen regional circuit courts that heard patent cases. They were free to disagree with each other, and they often did. The Supreme Court took patent cases typically only when an issue had been fully developed by the lower courts and then only when they disagreed with each other.
With the creation of the Federal Circuit, however, the smooth development of patent law ended. Federal Circuit panels decisions were binding precedent on later panel decisions, and practically the only way earlier panel decision could be overruled is if the issue were taken en banc.
While the system does provide national uniformity in patent law, it does not allow the robust debate that takes place when sundry Courts of Appeal can disagree with each other.
I have often thought, and sometimes argued, that the Federal Circuit would be better off if panel decisions were not binding on future panels, and that the Federal Circuit itself should take cases en banc when there was a conflict among panels. This actually happens to some degree, but it is not officially sanctioned.
Ned Heller asked me at 7.06am on November 11 how the European patentability standard “technical” can be any more sharp than “useful arts”. Trilithon repluied at 12.46pm.
I want to add one point. It is one I have made before but it is apt. Assiduous readers will forgive me, I am sure.
Europe doesn’t do Binding Precedent. So, instead of a SCOTUS ruling once every 30 years, it has >1000 EPO Technical Board of Appeal decisions each year, which sharpen and refine what “technical” means. With each year that goes by, therefore, “technical” gets more clear (and up to date) in meaning.
It is bizarre, I know, but those 21 Technical Boards of Appeal at the EPO are the ultimate authority on what’s patentable in Europe. No court can tell them what to decide. They are the end of the line.
Could they just be a bit too old? I think past a certain age only the transaction history is available. It’d be great to see the office action though.
Trilithon, I tip my hat. Nice to read your stuff. Don’t go away.
hack, I’m willing to be those were test apps filed by professors trying to provoke the Office into thinking.
Red Monkey posted, “Here is an example of a process claim drawn to what most people would regard as an abstraction (from either 10/035,947 or 10/073,093). 1. The process of combining God’s gift of reincarnation with love resulting in immortality.”
Two questions. Since these are published apps, why aren’t the file histories available in PAIR? And, did you notice these were NOT FILED PRO-SE?
That’s what I really find scary.
How about patents for random number generators, Malcolm?
Is it a new machine? Or just a new program for an old machine?
The Court seems to suggest that an invention be tied to “technology” in order to be patent eligible. Wouldn’t this be similar to the PTO’s technological arts test, which the Federal Circuit said in Bilski is not a test at all, but rather gives the issue a different name?
“Please note that the novel machine is not a re-programmed computer.”
Malcolm, to quote another poster here: Prove it.
Prove it by providing the basis in Law. Please reference that basis in regards to Alappat (Supreme Court jokes are not a basis in law).
Mostly what this case has pointed out is how ignorant the S Ct has become of basic patent law, now that the CAFC has effectively countermanded all the substantive rulings in this area. Their lack of understanding of the purpose of the different sections (101, 103, etc.) was appalling. Their questions confirm beyond any reasonable doubt that we can expect a completely random and unhelpful decision.
How about patents for random number generators, Malcolm?
Ned: Mooney, outside of patent law, just how is a computed price quote abstract? Just how is minimizing risk or balancing a boat abstract?
I never said that balancing a boat was abstract, Ned.
how is a computed price quote abstract
A computed price quote is abstract because it’s a number. Are numbers patentable? No. Is a process for generating a number patentable? It shouldn’t be. If the process requires a novel machine, then patent the novel machine. Please note that the novel machine is not a re-programmed computer.
Trilothon, thanks for the explanation. Well done. I think the funny hypos presented by the SCt Justices reflected their general concern with how to both eliminate “processes” that they think should clearly not be patentable without at the same time excluding things that history says were and should be patentable.
I predict that cert will be dismissed as improvidently granted. This case is way too easy and it does not involve the harder issues involving general purpose computers and medical diagnostics. If cert is not dismissed, I hope they write an opinion that neither affirms or rejects the CAFC’s reasoning. However, we all know that the CAFC will interpret it regardless as a vindication of the entire opinion, a la the CAFC’s treatment of Markman as endorsing their view that claim construction is an issue of law reviewed de novo (something the Supremes in Markman did not hold and did not address — if anything, their opinion reads against it).
… oh, and they’re gonna need claim dissection too, either for 101 analysis (like the UK) or for 103 analysis (like the EPO).
“They heard a criminal execution case in the morning. ”
No they didn’t.
In the morning they heard a case about whether or not a juvenile can get life in prison in a non-capital case. Not execution.
“Useful Arts” and “Technical” (and technology…)
Well, the Bilski opinion talked quite a lot about how technology and the useful arts were basically the same thing, which begs the question: what is technology? Leaving that to one side, the EPO use of “technical” as a touchstone doesn’t even derive from the primary statute (EPC), but arises from a preconceived notion that patents are for “physical” things, or advances in the “technical arts”, underpinned by a throwaway in the Implementing Regulations for the EPC that claims shall define inventions in terms of their “technical features”. This has been conflated with the statutory exclusions of computer programs, business methods etc. (“as such”).
One thing is plain, if you reject Bilski as 101-ineligible but would allow merely-computerised-Bilski, then you are exalting form over substance. If you reject both Bilski as-is AND merely-computerised-Bilski as 101-ineligible – on the basis that there is no meaningful difference between the two – then you need a reason that is supported by the statute, and that reason must be based on construing “process” to be limited in some way, which brings us back to the useful arts.
If State Street is to stand, without exalting form over substance, I don’t see how Bilski as-is can be rejected on 101. “Abstract” isn’t enough – these things clearly aren’t abstract on any sensible interpretation of the word.
As noted upthread, the EPO treats claims with any technical content as non-excluded, so merely-computerised-Bilski would pass that hurdle. It would, however, be rejected as non-inventive, because the only other features are non-technical and would be excluded from consideration, leaving only a general purpose computer.
The EPO grants patents for computer-implemented inventions (CIIs) – in which the only difference from the prior art lies in “software” – all the time, but only if the improvement over the prior art makes a technical contribution (solves a technical problem). So non-obvious software-based improvements in the technical operations of computing equipment – communications protocols, data-encryption, data-compression, operating systems and user interfaces – are all regarded as technical and patentable – call these “operational CIIs”. Non-obvious improvements in computer applications for “technical purposes” – process control, technical design and analysis, etc. – are also patentable. Call these “technical application CIIs”.
Something that causes a computer to be a technically improved tool for doing a non-technical job can be patentable, being a type of “operational CII”. But a CII where the only novelty lies in non-technical functionality – i.e. most “novel” user-oriented applications or systems, including financial, business, social, “office” etc. – while “eligible” can never be “inventive” and are therefore unpatentable. Call these “non-technical CIIs”.
If a CII is patentable at all in Europe, you can claim a method, programmed machine AND a computer program product (without a data carrier).
It seems to me that if SCOTUS wants to exclude Bilski and merely-computerised-Bilski, they’re gonna need a useful arts = technical standard, or something like it – but can they do that without throwing out State Street?
“Please read Newman’s dissent in Bilski and then try to answer the question again.”
LMAO – Do you have a framed picture, or maybe a shrine, of Newman in your office???
Here is an example of a process claim drawn to what most people would regard as an abstraction (from either 10/035,947 or 10/073,093).
1. The process of combining God’s gift of reincarnation with love resulting in immortality.
Suddenly, software claims don’t seem so bad after all.
Ned,
You ask “Mooney, outside of patent law, just how is a computed price quote abstract? Just how is minimizing risk or balancing a boat abstract?
Abstractions are disembodied ideas that have no concrete examples or results.”
Malcolm has already provided his premise that merely having a concrete example or result does not lift the item above an abstraction. He has implied that doing so would be an incorrect reading of Diehr, and that Diehrbots incorrectly (unlawfully?) hold this “ridiculous” position.
Did I state your position correctly, Malcolm?
MM you clearly do not understand the use of the word abstraction in connection with patent law or engineering. Please read Newman’s dissent in Bilski and then try to answer the question again.
Also, do you have an engineering degree? You only played with test tubes and microscopes didn’t you?
MaxDrei, on the suggestion to look to Europe and adopt “technical,” that seems as amorphous as “useful Arts,” which is the term used in our constitution and which now, it seems for the first time in our history, might actually have to be analyzed by the Supreme Court. What did the framers mean by the term.
step back, regarding “directed to,” inventions have “objects.” Would you be happier with
“the claim as a whole has an object within the Useful Arts?”
That may more legally correct, but it is a bit awkward. How would you phrase it?
step back and dennis: the problem is that the government contended that all one has to do to make business methods patentable subject matter was to execute them on a computer. The CJ was incredulous.
Dennis Schell,
Nice web site design!
As for what the Supremes were doing during orals, it’s hard to tell. They heard a criminal execution case in the morning. Maybe they simply needed to break the tension and they were doing it by joking around during the patent orals?
Yes, you are right. There is absolutely no computer, no software in Bilski’s claims. There is the mental step of identifying counterpart risk parties and then there is the post-solution steps of initiating transactions.
Diamond v, Diehr was basically the same thing: use the Arhenius equation and then engage in real world post solution activity by opening the rubber curing mold at the calculated moment. Jakes mentioned Diamond v, Diehr during the orals.
Somebody upthread complimented Mr Jakes on his slap-down of the Ginsberg J. question “Why don’t we do it like other countries do, by confining patentability to things technical?”.
But me, I wonder if Mr Jakes offended Newton’s Rule of Successful Advocacy, the one that is based on every force having an equal and opposite reaction.
Thus, whenever the advocate urges “You can’t do that” the court (being human) can’t help itself thinking “Oh really? We’ll see about that”.
Amazing how the oral argument included hypotheticals of whether programing a general purpose computer provides 101 subject matter, yet the claims before the court involve no computer implementation at all…is the court trying to decide the issues before it, or something entirely different?
Mooney, outside of patent law, just how is a computed price quote abstract? Just how is minimizing risk or balancing a boat abstract?
Abstractions are disembodied ideas that have no concrete examples or results. But all of the above do have real and specific consequences.
Back to patent law, just how is the boat transformed by balancing?
What is the meaning of abstract in patent law?
Let’s see. One possible definition is any process that fails to directly achieve, as its primary purpose, a tangible transformation of a composition of matter.
And yes that excludes methods for transforming information into matter and vice versa.
Obviously new machines that do execute such processes would remain patentable.
Ned Heller,
Claims are not pointing vectors and thus they are not “directed” at stuff.
(I know. I know. The judges use that kind of nonsense language. But they are judges. They can talk nonsense. We shouldn’t.)
That said, I think you are on to something.
Test: Does the method claim taken as a whole preempt the free flow and communication of the abstract ideas behind the invention (or “free flow of information” about the invention as Sotomayor phrased it)? If not, it is not precluded by 101.
p.s. to Dennis,
How come the sizing option doesn’t work for img files? I would have liked to make that one smaller but couldn’t get the preview version to respond.
Mark,
If you select and right click and pick View Source (meaning HTML source language) you’ll see how.
how do you get the pictures to post?
The fact is, if free flow of information were the test, then all kinds of patents to communication coding methods (TDMA, FDMA, CDMA anyone?), compression methods or the like would never be granted because they are not machines and they restrict the “free flow of information.”
There is no “free flow of information test” for patentability that I’m aware of. Certainly Justice Sotomayor never proposed one. But denying patents on codes and compression algorithms is a great idea, regardless.
Wise Latina woman indeed…
Congrats, you just won a date with Glenn Beck! He’ll pick you up after the KKK meeting. What color sheet will you be wearing?
And frankly speaking, I am not aware of Sotomayor’s rather inventive “free flow of information” test. I wonder if the Google reprepsentatives have been taking her to dinner…
The fact is, if free flow of information were the test, then all kinds of patents to communication coding methods (TDMA, FDMA, CDMA anyone?), compression methods or the like would never be granted because they are not machines and they restrict the “free flow of information.”
Wise Latina woman indeed…
Malcolm posts crap to this abstract mathematical non-existent forum using only abstract non-existent algorithms transported by abstract non-existent routing algorithms, all of which were found in the crappy library of ancient Alexandria or were known and obvious before they ever existed and which can be written up in a statute-satisfying specification in minutes again using non-existing abstract algorithms and perhaps telepathy, all while quaffing some patented real concrete non-abstract snakeoil that took years of toil in the labratory and billions of dollars in investment. If he happens to use a crappy machine to do any of these things, he does it with the machine turned off because the machine is no different when turned off as when crappily it is turned on.
“Well without the full spec in front of us we can never be sure what went on Ned. I might offer some conjecture later, or I might divine the proper interpretation from that big jumble of mess, but it seems unlikely. ”
“There is nothing absurd about effectively disemboweling an abused doctrine for expanding patent scope.”
Since when should the simple act of amending a dependent claim that has been indicated allowed, to incorporate the features of the base claim limit the scope of that dependent claim?
Festo, like you Mooney,is an abomination
Night Writer, I would suggest that Mooney believes that calculating price (State Street) and risk (Bilski) are abstract, even though quite concrete and useful.
MM, all historians have an agenda. The trick is to recognize it.
Ditto reporters.
A proposed test:
1) Is the claim as a whole directed to the Useful Arts; and, if so,
2) Is it directed to a machine, article of manufacture, process or composition of matter.
In deciding the first issue, subject matter made by man and that is useful to produce a concrete OR tangible result should be presumed within the Useful Arts. Laws of Nature and natural phenomena, not made by man, can be claimed as components of useful applications.
MM >>abstract processes
OK MM. Let’s call you down. What is the meaning of abstract in patent law?
ok. Here it is.
1. A Player Piano is patentable.
A Piano Player is not.
2. If the Patent Office gets inventors to divulge the details of their invention before a patent is issued, then there is no longer a reason for the Patent Office to issue the patent.
3. The Patent Office only has to issue enough patents to con inventors into applying for patents. It’s the reason slot machines make so much noise when they pay out. Most of the Players lose and the House always wins.
With respect to Mr. Murdoch, I believe he is doing more to disseminate the free flow of information than any many in history. What he proposes will limite the propagana effect of corporate news that has controlled the masses for decades.
Well, it will limit the propaganda effect of “news” disseminated by Rupert Murdoch, that is for sure. Not sure I follow the gist of whatever else you’re driving at.
CPastel So, if you patent a method of training horses that 20,000 people are going to use, how do you sue all of them for infringement? Especially since everyone can read the details of the method in the published patent.
I’m not sure what the latter statement has to do with the former. And the horse training example is misleading in certain respects. If you are a horse training facility and you are charging people for your service, you can be sued for your employees’ acts. I don’t see why that was ever a particular problem. Companies have always had uniform practices and standards for, e.g., accounting. Why didn’t applicants smell the possibility of profit from sueing companies for their accounting and/or customer relations practices?
Your comment is interesting. The relationship between software patents and patents on abstract processes is truly intimate. After companies began selling software for executing abstract processes and the PTO blinked and issued patents on those processes, the rising tide of litigation windfalls ensured the interest of patent attorneys and the rest is history.
Dear Mr. Mooney:
With respect to Mr. Murdoch, I believe he is doing more to disseminate the free flow of information than any many in history. What he proposes will limite the propagana effect of corporate news that has controlled the masses for decades. There are so many primary sources of information that news stories will be propagated freely and independent of the taint of corporate bias. There is, of course, the reality that the Pentagon, CIA, NSA and other corporate functionaries will dissimenate information under the guise of being an independent bloggeer, but that risk is present today. What I predict will occur is that Mr. Murdoch will determine that his corporate payment for information will be an abject failure, excepting, of course, if it is used as nothing more than an funding source for the aforementioned functionaries. That is entirely possible. In this regard, mainstream (pay for) media will be nothing more than an insurance policy for the corporate elite to ensure that a certain percentage of the population’s minds are filled with information favorable to the corporate elite, vis-a-vis the aforementioned functionaries.
6; the case: link to supreme.justia.com
See:
“The operator’s hand taken off, and the main circuit is broken, the receiver within it is not a magnet, the movable lever has been withdrawn, by its spring, from the platina point, the local circuit is broken, the register magnet is no longer a magnet, and the pen has been sprung down from the paper, and stands ready to repeat and add another character of the intelligence.
The operator’s hand upon his lever, and another character is added. And,
These are the characters recorded, and how they are read: .- is A, -… is B, -.-. is C, -.. is D, . is E, ..-. is F, –. is G, …. is H, .. is I, .— is J, -.- is K, .-.. is L, — is M, -. is N, — is O, .–. is P, –.- is Q, .-. is R, … is S, – is T, ..- is U, …- is V, .– is W, -..- is X, -.– is Y, –.. is Z, and such is the alphabet.
Page 56 U. S. 95
Then .—- is 1, ..— is 2, …– is 3, ….- is 4, ….. is 5, -…. is 6, –… is 7, —.. is 8, —-. is 9, —– is 0; and these are the numerals.
The holding down the lever an instant indented one dot .; the holding it longer made a dash – of a length corresponding to the time. The dots were made at distances corresponding to the time the hand was held off the lever. And,
This is the telegraph and its operations before us.”
Footnotes 29-33 of Stern’s brief:
“29 This may require fine distinctions. Making steel or shoes is within the useful Arts, but engaging in the business of selling steel or shoes is not within the useful Arts. A trader is not an artisan. Noah Webster defined a trader as “[o]ne engaged in
trade or commerce; a dealer in buying and selling or barter.”
30 Classically, the seven so-called liberal arts were arithmetic, geometry, music, astronomy, grammar, rhetoric, and logic.
31 Performing arts include performance of music, drama (including tragedy and comedy), and dance.
32 Literary arts include composition of poetry (as distinguished from its recitation or performance).
33 Martial arts include boxing, wrestling, and fencing
“Mal, it’s because the statute changed in 1952, and it took several decades before the word trickled out to those inventing new processes, and several court decisions before those people started believing that things really had changed”
Maybe you didn’t notice, but the USSC itself established that nothing changed in the transition from “art” to “process”. Nothing is ever going to have changed from that transition.
MM: It actually has everything to do with what she said but rather than admit you were being a jackass you are going to stick your head in the sand and pretend otherwise. Nothing new here, folks. Move along.
Sotomayor’s statement was in response to an assertion that patents provide disclosure, and thus contribute toward free flow of information. The disclosure of an invention to the public is free flow of that information; information that would have otherwise likely remained secret.
Use of that information, i.e., that use which may require licensing fees and other steps, legal steps, is different from a “flow” of information.
“System?
6, your views.
”
I want a side of spec to go with the main meal if you please Ned.
Everyone will declare victory (except Bilski) and no one will be happy.
I can’t say I would be unhappy with a relatively flexible test that could be used to bar claims like Bilski’s. The major problem with the Bilski test was that, as applied by the Federal Circuit, both prongs elevated form over substance. In the end, there was no “there” there.
MM: “useful Art” as it was intended by the framers. As pointed out in Stern’s brief, “useful Art” was a somewhat well understood term at the time. It was contrasted to other types of Arts, which were also well understood. Lets call the other Arts the Excluded Arts.
Stern argues that a Useful Art today is an extension what was understood then. I would argue the contrary: if it is not one of the Excluded Arts, but is useful, it must be a Useful Art because it is either an Useful Art or an Excluded Art.
As for the question asking why there haven’t been more business method patents in the past, here’s my take. How does one make money off a patent? Simple–you have to be ready to sue any infringers. If you can sue two manufacturers who make a product or 20,000 customers who use the product, who do you go after?
As I drafted claims, my mentor always made sure I knew who the client would want to go after.
So, if you patent a method of training horses that 20,000 people are going to use, how do you sue all of them for infringement? Especially since everyone can read the details of the method in the published patent.
Same idea with business methods. How do you sue all the potential infringers?
Answer: if the business method is embodied in software, you can sell the patented software and go after infringing manufacturers instead of infringing users.
So I think that it wasn’t until the rise of easily reproducible computer software programs that it became worthwhile, for the most part, to patent business methods. This has been my own experience, too. Before State Street, I patented so-called software patents that were used for specific control purposes, such as the methods used for controlling elevator cars. After State Street, I patented business methods that could be embodied in software and sold to the customers.
*******why weren’t these crappy patents on manipulating money and “recommending a friend” sought with earnest until very recently? ******
Mal, it’s because the statute changed in 1952, and it took several decades before the word trickled out to those inventing new processes, and several court decisions before those people started believing that things really had changed. Apparently, the word still hasn’t made it to some of the supremes, and even some ip professionals.
You have a temper that makes me think you are an alcoholic MM.
Mal, it’s because the statute changed in 1952, and it took several decades before the word trickled out to those inventing new processes, and several court decisions before those people started believing that things really had changed. Apparently, the word still hasn’t made it to some of the supremes, and even some ip professionals.
Ned: This is the question is it not? The Supremes seem to understand the issue is not the four categories: machine, article of manufacture, process or composition of matter, but utility.
Not necessarily agreeing with you but if this is true than Prometheus can kiss its claim goodbye now.
“Joe Breimayer – Agreed. I think they will dump the MOT test and replace it with another incoherent and impossible to implement standard. I’d go so far as to say the standard they’ll replace it with will be a regurgitation of existing contradictory precedent. Same as it ever was.
Bilski will not get a patent, which will be the closest thing to guidance we’ll see. Everyone will declare victory (except Bilski) and no one will be happy.
Posted by: Znutar | Nov 10, 2009 at 01:20 PM”
I agree with both of you. Smells like KSR redux.
>>Once again. Prove I said what you say I said.
Troll, if you stop cheerleading for the worst of the worst wankers simply because they are arguing with me or 6, you’ll be better off, trust me. Same goes with NWPA, who I simply assume is your sockpuppet (or AI’s).
Morse’s Fifth. “I claim as my invention the system of signs, consisting of dots and spaces, and of dots, spaces, and horizontal lines, for numerals, letters, words, or sentences, substantially as herein set forth and illustrated, for telegraphic purposes.”
System?
6, your views.
smashmouth I also think the disclosure supposedly given by published patents and applications is greatly overrated, given the relatively lax standards of enforcement of Section 112.
Not only that, but patent applications are uniformly among the worst drafted documents that exist on earth and also among the least reliable. You’d have to turn to Conservapedia or something of that ilk to find a similarly low ratio of signal to noise.
If the claimed subject matter has a kind of utility that is recognizable as a “useful Art,” then it should be patentable even if claimed as a process and regardless of whether it is claimed in connection with a computer or article manufactured. That is the point Jakes was making.
Recognizable or “recognized by the framers”?
Obviously the latter test would not mean that “useful art” is limited only to technologies that existed at the time of drafting the amendment. But it does mean that “useful Art” doesn’t mean “anything that anyone can argue with a straight face is useful to someone.” The “dog that didn’t bark” has been pointed in these threads many many times: why weren’t these crappy patents on manipulating money and “recommending a friend” sought with earnest until very recently? And please spare us the propaganda/myth about the “new” field of “financial engineering”.
Joe Breimayer – Agreed. I think they will dump the MOT test and replace it with another incoherent and impossible to implement standard. I’d go so far as to say the standard they’ll replace it with will be a regurgitation of existing contradictory precedent. Same as it ever was.
Bilski will not get a patent, which will be the closest thing to guidance we’ll see. Everyone will declare victory (except Bilski) and no one will be happy.
>>Once again. Prove I said what you say I said.
Yes, MM. That is the problem with arguing with you. When push comes to shove you back down and pop up on the next thread. (Probably out of a reflex for forcing us to file RCEs.)
Ken Brooks said, at Nov. 10, 12:33 p.m.:
“I think Justice Sotomayor makes one of the most interesting points about how patents limit the free flow of ideas. Actuatlly that is abosolutely incorrect. Patents facilitate the free flow of ideas, but limits the ability to embody the patented idea into a useful article.”
I disagree with “absolutely” incorrect. Although generally what you say is true, I agree with Mooney’s point that in the context of Bilski, where the claims are directed to flow/dissemination of information, a patent would actually restrict the flow of information among the universe of potential infringers, i.e., everyone else.
Another way patents may restrict information flow is because of the disincentive to know others’ patents so as to avoid willful infringement (lessened but arguably not eliminated by the CAFC a few years back in the Knorr-Bremse case).
I also think the disclosure supposedly given by published patents and applications is greatly overrated, given the relatively lax standards of enforcement of Section 112. It seems the incentive to get overly broad claims to capture future infringers far outweighs the 112 requirements of definiteness and enablement. Do you really think anyone who actually does research would wade through the mountain of patents and their vague disclosures to discover anything new and useful? I really doubt it.
“5
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JUSTICE SCALIA: Sound — sound is not
physical, and electric current is not physical?
MR. JAKES: I think electric current is
physical.
JUSTICE SCALIA: Yes, I think so.
MR. JAKES: Yes.
JUSTICE SCALIA: Sound is, too.
MR. JAKES: It can be, but when it’s
transmitted over a wire, it’s not. It’s something else.
It’s an electrical current then. ”
WTF? Is this the best the Patent Bar can offer up? “It’s not [physical]. … It’s an electrical current[.]” WTF???
Posted by: Trilithon | Nov 10, 2009 at 12:01 PM “If the use of a computer wasn’t critical to eligibility in the State Street decision then why shouldn’t Bilski be eligible as-is? If the use of a computer actually did make the difference in State Street, why shouldn’t computer-Bilski be OK?”
This is the question is it not? The Supremes seem to understand the issue is not the four categories: machine, article of manufacture, process or composition of matter, but utility. This contrasts heavily to the government’s positions that seems to elevate form over substance and would patent the Bilski claim if encoded on a disk or executed on a computer.
Y’all should refrain from smacking down Sotomayor J. until y’all review her comments regarding the Morse patent. Actually pretty insightful.
6 – the request for proof wasn’t proof from you, it was proof from your erstwhile examiner buddy Malcolm.
You are wrong – yet again (how do you stand it!) regarding Alappat. Even Lord Kappos regards Alappat as I do. The Supremes comments change nothing, unless you want to ignore Sotomayer’s comment on State Street as well.
Malcolm,
“But I’m glad to hear that you disagree with AI’s position, now. You’ve taken a step a right the direction” – misdirection must be an art they teach you examiners. You haven’t proven anything. My support for AI was in regards to your tricks, misquotes, purposely twisted half quotes and assorted other garbage that you want people to review. Several people, including your brother examiners posted that the hypo claims you so desparately want to ensare people with are CRAP. If you want poeple to address issues, you must put them insubstantive form – like my challenges to you.
Once again. Prove I said what you say I said.
The Bilski claim is like a claim to balancing the load on a boat.
Exactly right, if the load on the boat is a checkbook.
“SOTOMAYOR in page 30 said: No ruling in this case is going to change State Street. It wasn’t looking at process or the meaning of process. It was looking at something else.
Any ony knows what she is talking about?
Posted by: jk | Nov 10, 2009 at 11:49 AM”
My best guess is simply that the claims in State Street were directed to a machine, not a process. See pp. 3-4 of the State Street opinion linked below.
Link to State Street opinion: link to ll.georgetown.edu
Note also that later on at p.6, Judge Rich comments that “The question of whether a claim encompasses statutory subject matter should not focus on which of the four
categories of subject matter a claim is directed to —process, machine, manufacture, or composition of
matter—but rather on the essential characteristics of the subject matter, in particular, its practical utility.” Can’t say that is true to the statute, but that’s what he said.
Posted by: jk | Nov 10, 2009 at 11:49 AM: SOTOMAYOR in page 30 said: No ruling in this case is going to change State Street. It wasn’t looking at process or the meaning of process. It was looking at something else.
Any ony knows what she is talking about?”
The State Street claim was to a machine, not to a process. Somehow she thinks the “utility” issue here was not common to both processes and machines. She is wrong in that.