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Authored by: OpenSourceFTW on Friday, January 04 2013 @ 03:07 PM EST |
I object to the fact that the Patent Office grants a ludicrous number of
ridiculous patents, some of which conflict with each other. So many patents are
so broad that they can be used to sue companies over matters no one can
foresee.
Even within the scope of the court rulings and legislation, they are doing a
miserable job.
Oh, and many of us are not lawyers, but software developers who are affected so
much by this mismanagement.[ Reply to This | Parent | # ]
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Authored by: Anonymous on Friday, January 04 2013 @ 04:36 PM EST |
Please explain how we can resolve the dichotomy whereby
>> CONGRESS and the COURTS [cannot] decide
what subject matter is considered patentable. <<
Which is to say Congress writes the law. Typically the law is not
understood by attorneys or lower courts, then the FCAC interprets
the law in one way, and SCOTUS interprets it in another way.
>> The administration [USPTO] simply tries to
do the best they can to implement these [overreaching] policies. <<
Perhaps we gentle readers who see the law as clear and concise,
really need more education in mathematics, eg.
Ambition, Distraction, Uglification, and Derision.
[ Reply to This | Parent | # ]
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Authored by: hAckz0r on Friday, January 04 2013 @ 04:46 PM EST |
And the REAL problem is that Congress gets money for each *stupid* patent
awarded by the USPTO. Neither has any incentive to break off from the source
of their money. USPTO needs Congressional support for their budget and Congress
(US Treasury actually) gets pork money from the excess revenues taken from the
USPTO. Its a given that neither party is going to budge on the topic of getting
a divorce from each other, or anything that is going to diminish that lucrative
relationship. --- The Investors IP Law: The future health of a
Corporation is measured as the inverse of the number of IP lawsuits they are
currently litigating. [ Reply to This | Parent | # ]
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- Oh please... - Authored by: Anonymous on Friday, January 04 2013 @ 11:09 PM EST
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Authored by: reiisi on Friday, January 04 2013 @ 07:10 PM EST |
Breach of first amendment, to start with, and some provisions within the body of
the Constitution itself.
If you understand the underlying nature of software.
This has a lot to do with the reasons patent law was supposed to prohibit pure
process patents (and be very strict on any patent that seemed to attempt to put
limits on processes themselves).
The ability to handle complex processes with computers has turned into a legal
conceit that complex processes should be exempt from the ban.[ Reply to This | Parent | # ]
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Authored by: PJ on Friday, January 04 2013 @ 11:01 PM EST |
Oh please, yourself. If, as we believe,
software is unpatentable subject matter,
then no law needs to change. People just
need to start to actually obey the law.
That would be refreshing.
Also, you are evidently not aware of it, but
software became patentable not by statute but
by court rulings, which are not even consistent.
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- Oh please... - Authored by: Anonymous on Saturday, January 05 2013 @ 04:40 AM EST
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Authored by: Ian Al on Saturday, January 05 2013 @ 09:03 AM EST |
When the USPTO complies with the Supreme Court statement of the law then the
USPTO's reason for holding this discussion will vanish.
The meeting is
to discuss problems with patents failing to adequately meet 35 U.S.C. § 112.
When the USPTO put the question to the Supreme Court in a Government brief as
Amicus Curiae, this is what they were told:
“The Government argues
that virtually any step beyond a statement of a law of nature itself should
transform an unpatentable law of nature into a potentially patentable
application sufficient to satisfy §101’s demands. Brief for United States as
Amicus Curiae. The Government does not necessarily believe that claims that
(like the claims before us) extend just minimally beyond a law of nature should
receive patents. But in its view, other statutory provisions—those that insist
that a claimed process be novel, 35 U. S. C. §102, that it not be “obvious in
light of prior art,” §103, and that it be “full[y], clear[ly], concise[ly], and
exact[ly]” described, §112—can perform this screening function. In particular,
it argues that these claims likely fail for lack of novelty under
§102.
This approach, however, would make the “law of nature”
exception
to §101 patentability a dead letter. The approach is therefore not consistent
with prior law. The
relevant cases rest their holdings upon section 101,
not
later sections. Bilski, Diehr, Flook, Benson.See also H. R. Rep. No. 1923
(“A person may have ‘invented’ a machine or a manufacture, which may include any
thing under the sun that is made by man, but it is not necessarily patentable
under section 101 unless the conditions of the title are fulfilled” (emphasis
added)).
We recognize that, in evaluating the significance
of
additional steps, the §101 patent-eligibility inquiry and,
say, the §102
novelty inquiry might sometimes overlap.
But that need not always be so. And to
shift the patent
eligibility inquiry entirely to these later sections
risks
creating significantly greater legal uncertainty, while
assuming that
those sections can do work that they are
not equipped to do.
I
have quoted this so often that I am not going to give you a link. You can search
for my other comments if you need one.
So, the USPTO said to the
Supreme Court that a review of the later sections of U.S.C. were quite
sufficient to be legally specific and now they are holding a conference because
35 U.S.C. § 112 is proving inadequate:
While it is permissible to
use functional language in patent claims, the boundaries of the functional claim
element must be discernible. Without clear boundaries, patent examiners cannot
effectively ensure that the claims define over the prior art, and the public is
not adequately notified of the scope of the patent rights. Compliance with 35
U.S.C. 112(b) (second paragraph prior to enactment of the Leahy-Smith America
Invents Act (AIA)) ensures that a claim is definite. There are several ways to
draft a claim effectively using functional language and comply with section
112(b). One way is to modify the functional language with structure that can
perform the recited function.
Another way is to invoke 35 U.S.C. 112(f)
(sixth paragraph pre-AIA) and employ so-called ``means-plus-function'' language.
Under section 112(f), an element in a claim for a combination may be expressed
as a means or step for performing a specified function without the recital of
structure, material or acts in support thereof, and shall be construed to cover
the corresponding structure, material, or acts described in the specification
and equivalents thereof.
As is often the case with software-related
claims, an issue can arise as to whether sufficient structure is present in the
claim or in the specification, when section 112(f) is invoked, in order to
satisfy the requirements of section 112(b) requiring clearly defined claim
boundaries. Defining the structure can be critical to setting clear claim
boundaries.
After being told that their philosophy is contrary to
the law, they persevere and ask the victims of their illegality to help them
make § 112 a more effective screening mechanism for invalid patents. If they had
followed the directive of the Supreme Court, all their problems with software
patents would have been solved:
JUSTICE BREYER delivered the
opinion of the Court.
Section 101 of the Patent Act defines patentable
subject
matter. It says:
“Whoever invents or discovers any new and
useful
process, machine, manufacture, or composition of
matter, or any new and
useful improvement thereof,
may obtain a patent therefor, subject to the
conditions
and requirements of this title.” 35 U. S. C. §101.
The
Court has long held that this provision contains an
important implicit
exception. “[L]aws of nature, natural
phenomena, and abstract ideas” are not
patentable.
Again, you can hunt for the source in my other
comments through the years. In other cases, it has been pointed out that
mathematics is abstract ideas (Benson). PolR has shown that all software is math
algorithm. The software writers brain is full of inventive ideas on how to
implement functions in software, but the thing that gets executed on-a-computer
is math algorithms. If this is true, then software, per se, is not statutory
subject matter as stated in the law and as clarified over many years by the
Supreme Court.
You said:For your information, my dear
lawyers, it is CONGRESS and the COURTS that decide
what subject matter is
considered patentable. The administration simply tries to
do the best they can
to implement these overarching policies. They can't change
them. They'd be sued
if they did.
Seriously, I understand how logic can be subverted by
high emotions, but that
was embarrassing.
I agree that ' it is
CONGRESS and the COURTS that decide
what subject matter is considered
patentable.' Congress passed U.S.C. 35 § 101, - Inventions patentable. However,
I fail to see how logic is being subverted by high emotions in an embarrassing
way by pointing out that the USPTO are not abiding by the law and explaining how
they are failing.
Unless, of course, you are one of those ad hominems
that PJ tells us to avoid.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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