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Authored by: Anonymous on Friday, March 15 2013 @ 01:53 PM EDT |
It speaks of Abstract concepts in software.
But not to the fact that
software itself is abstract... or at least, at a quick perusal it doesn't seem
to touch on that point.
I have a concern that without stating that fact -
we are, in effect, allowing the concept that software is somehow physical to be
perpetuated. Thereby allowing the illusion of something tangible to continue to
exist.
Yet - I'm torn on that because I wonder if introducing the concept
that Software itself is nothing but abstract might be too much.
If it
were the Supremes, I'd definitely have said to introduce that.
But with
it being the USPTO*.... I haven't quite formed the opinion that
discussion with the USPTO is about as useful as discussion with Gene Quinn. But
I'm certainly leaning in that direction.
* Specifically the management
and appeal board at the USPTO. Not necessarily the patent examiners
themselves.
RAS[ Reply to This | # ]
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Authored by: designerfx on Friday, March 15 2013 @ 02:06 PM EDT |
post corrections here
starting with the "it it" in the title.[ Reply to This | # ]
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- it -> its - Authored by: IANALitj on Friday, March 15 2013 @ 02:50 PM EDT
- data has -> data have - Authored by: IANALitj on Friday, March 15 2013 @ 02:56 PM EDT
- supra is misused in suggested topic 4 - Authored by: IANALitj on Friday, March 15 2013 @ 03:09 PM EDT
- … --> … utf-8 character on page delivered as charset=iso-8859-1 - Authored by: Anonymous on Friday, March 15 2013 @ 03:24 PM EDT
- corrections thread - Authored by: PJ on Friday, March 15 2013 @ 03:26 PM EDT
- corrections thread - Authored by: Anonymous on Friday, March 15 2013 @ 04:16 PM EDT
- duplicate "on the expressions of ideas" - Authored by: bugstomper on Friday, March 15 2013 @ 06:06 PM EDT
- A stray " character in the supplement - Authored by: bugstomper on Saturday, March 16 2013 @ 03:24 PM EDT
- "... for carrying an addition ..." - Authored by: Anonymous on Saturday, March 16 2013 @ 04:30 PM EDT
- "millenia" -> "millennia" - Authored by: Anonymous on Monday, March 18 2013 @ 11:46 AM EDT
- "the series of natural numbers" - Authored by: Anonymous on Monday, March 18 2013 @ 11:49 AM EDT
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Authored by: designerfx on Friday, March 15 2013 @ 02:07 PM EDT |
post off topic comments here, starting with happy friday, etc. [ Reply to This | # ]
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- Video codecs: The ugly business behind pretty pictures - Authored by: JamesK on Friday, March 15 2013 @ 04:49 PM EDT
- Google actually did me a favour with the brouhaha over its closure of Google Reader - Authored by: SilverWave on Friday, March 15 2013 @ 08:07 PM EDT
- Full Text RSS Feed Builder Rids You of Truncated RSS Feeds Forever - Authored by: SilverWave on Saturday, March 16 2013 @ 05:13 AM EDT
- Federal Judge Finds National Security Letters Unconstitutional, Bans Them - Authored by: Anonymous on Saturday, March 16 2013 @ 01:21 PM EDT
- UK Government mandates a preference for Open Source - Authored by: TiddlyPom on Saturday, March 16 2013 @ 03:12 PM EDT
- Looks good, but ... - Authored by: Anonymous on Saturday, March 16 2013 @ 03:31 PM EDT
- Oh cool - Authored by: Anonymous on Sunday, March 17 2013 @ 08:15 AM EDT
- Old News - Authored by: Anonymous on Monday, March 18 2013 @ 05:30 AM EDT
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Authored by: designerfx on Friday, March 15 2013 @ 02:08 PM EDT |
newspicks discussion here. [ Reply to This | # ]
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Authored by: Anonymous on Friday, March 15 2013 @ 02:23 PM EDT |
Wow. While recently having been (re)reading Peirce (Philosophical Writings of
Peirce, ISBN 0-486-20217-8), it had struck me how much of his writings on
Semiotics would pertain to discussing and analyzing patents and their
eligibility.
I'm still reading in detail Groklaw's Response to the USPTO.
Two issues currently:
- The inclusion of Peirce's Semiotics in Groklaw's response has prompted me to
create an account on Groklaw, only to discover that new accounts can't be
created, requiring me to post the anonymously.
- Nowhere in Groklaw's response is Peirce spelled correctly. Groklaw's response
uses Pierce where the spelling should be Peirce. As an aside, the pronunciation
of his name is akin to the word 'purse', not 'pierce'. If your spell checker is
marking Peirce as a misspelling, then add Peirce to your dictionary.[ Reply to This | # ]
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Authored by: OpenSourceFTW on Friday, March 15 2013 @ 02:38 PM EDT |
I was able to understand pretty much all of it.
Short, to the point, and makes good points. Hopefully it will make the USPTO
reconsider some things.
I now feel like I understand the basics of semiotics, and it now makes sense why
this is so important for determining whether a patent covers merely abstract
concepts.
Let me see if I understand:
The sign-vehicle (the computer) is performing an operation and produces output
(the referant). The former is patentable (in parts and as a whole), and the
latter is possibly copyrightable but not patentable (it is symbolic output).
Given this situation, if one merely changes the interpretant (i.e. this output
describes the shape of a golf club), this makes for an unpatentable concept.
That is to say, no matter what I do with the interpretant, the operation does
not suddenly become patentable.
I can either patent the computer hardware itself or use this concept in a
patentable invention (i.e. a new golf club casting machine that uses said
software). However, that still does not make the interpretant patentable as a
stand-alone concept.
Am I understanding the concept?[ Reply to This | # ]
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Authored by: Imaginos1892 on Friday, March 15 2013 @ 06:03 PM EDT |
In exploring the nature of computers and programming we've bounced
some analogies around here, such as a movie projector, but have not
explicitly taken them to their logical conclusion:
Just as a movie projector is a machine for playing movies, and a
record player is a machine for playing records, a computer is a
machine for playing computer programs. Each of these actions will
produce certain effects, depending on the specific movie, record
or program; but none of them alter the machine, or its ability to
play other media or repeat the same one.
This concept should be simple enough for even those completely
ignorant about computers to grasp.
----------------------
I could be arguing in my spare time.[ Reply to This | # ]
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Authored by: Gringo_ on Friday, March 15 2013 @ 06:27 PM EDT |
Don't answer that. That question was rhetorical hyperbole. Of course
software patents are bogus, and make me very angry as a software
developer.
The proper question is, when is the EFF going to take up the challenge?
I am well aware the EFF does much to help software developers and
fight software patents, but they have never challenged the fundamental
issues as stated here on Groklaw.
I would like to see this taken to the Supreme Court, with testimony from
the foremost computer scientists. At the same time, we need to start a
petition.
Sent from my phone, which interacts badly with Groklaws forms.
[ Reply to This | # ]
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Authored by: macliam on Friday, March 15 2013 @ 07:33 PM EDT |
Maybe it is too late to encorporate examples. There is a lot of theory.
But, to bring home the point to patent lawyers, maybe a few examples of patent
claims that confuse hardware with semantics might be useful.
Consider,
for example, the following patent claim.
26. A data processing
system to enable the exchange of an obligation between parties, the system
comprising:
a communications
controller,
a first party device, coupled to
said communications controller,
a data storage
unit having stored
therein
(a) information
about a first account for a first party, independent from a second account
maintained by a first exchange institution,
and
(b) information
about a third account for a second party, independent from a fourth account
maintained by a second exchange institution;
and
a computer, coupled to said data storage
unit and said communications controller, that is configured
to
(a) receive a
transaction from said first party device via said communications
controller;
(b)
electronically adjust said first account and said third account in order to
effect an exchange obligation arising from said transaction between said first
party and said second party after ensuring that said first party and/or said
second party have adequate value in said first account and/or said third
account, respectively;
and
(c) generate an
instruction to said first exchange institution and/or said second exchange
institution to adjust said second account and/or said fourth account in
accordance with the adjustment of said first account and/or said third account,
wherein said instruction being an irrevocable, time invariant obligation placed
on said first exchange institution and/or said second exchange
institution.
This claim is a claim to a machine. There
can be no doubt about that. It has a "data storage unit" that is
capable of "electronically adjusting" various "accounts"
(whatever they are). The machine operates in the physical world. The claim
should clearly determine which machines infringe, and which don't. But this is
a machine that capable not only of manufacturing "instructions" but
indeed is specifically distinguished from other machines by its remarkable and
indeed miraculous capacity to generate "instructions" that are
irrevocable time-invariant obligations and to somehow "place"
such obligations on financial institutions.
Those of us used to working
with more mundane apparatus might suppose that properties of being
time-invariant or irrevocable might be properties adhering to
"instructions" by virtue of accounting, regulatory or legal
conventions, and have reference to the meaning of the
instruction.
Maybe this patent claim is rather close to the bone? It is
taken from Alice Corporation's 7,725,375 patent. Judge Moore referred to this
specific claim at the start of the CLS
Bank v. Alice en banc Oral Argument before the Federal
Circuit:
"Actually no, we know that's not right because we
have the specifications of the patent.. which aaa if you look at columns 7 and 8
span 2 full columns of exasperative detail about how for example .. 'the
processing unit 20 comprises 3 interlinked data processers, such as the sun
670mp manufactured by Sun Microsystems, each processing unit runs operational
systems software such as sun microsystems os 4.1.2 as well as applications
software. The applications software is shown in the flow charts accompanying
this patent ie figures 8 through 16 and figures 18 through 40 which contain
detailed flow charts that would certainly satisfy anybody's predilections
regarding an algorithm disclosure for sofware purposes .... Perry "your honor"
.. this is so far from just a computer doing an abstract idea .. I can't even
imagine how you can characterize it as such."
[ Reply to This | # ]
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Authored by: macliam on Friday, March 15 2013 @ 08:11 PM EDT |
I thought I might add here some paragraphs that I put together last Monday.
When I saw that Groklaw was putting together a submission to the PTO, I wrote
out some of my thoughts, then looked at the Groklaw article, and the comments,
but then thought that these might not fit in. Certainly some here might think
that they would not go far enough in categorically excluding software patents,
but I based the first part of it on the basis of Justice Breyer's Supreme Court
opinion in Mayo v. Prometheus. The second part contains some ideas that
have been revolving around my mind regarding the nature of software that, so far
as I can tell, correspond fairly closely with the analysis using semiotics.
(After all, whatever analytical framework you use, the basic underlying ideas
must surely be well-understood by the Groklaw community.)
So, for the
record, this is what I drafted last
Monday
Patent-Eligibility: The Flook-Mayo
Framework
Where a claimed invention substantially
implicates
judicially-excepted subject matter, which includes
laws of
nature, natural phenomena and
abstract ideas, it should be
analyzed for
patent-eligibility under Section 101 of Title 35 of the
United
States Code in accordance with the holdings of
the Supreme Court that relate to
patent-eligibility of
subject matter under Section 101 of the Statute.
Of
particular relevance are the holdings of the Supreme
Court in
O'Reilly v. Morse,
Gottschalk v. Benson,
Parker v. Flook,
Diamond v. Diehr,
Bilski v. Kappos
and
Mayo Collaborative Services v.
Prometheus Laboratories Inc..
In particular, the unanimous per
curiam opinion in Mayo
sets out the principles that should be
followed when assessing claimed
inventions for patent-eligibility under Section
101 of Title 35
of the United States Code. Given that the analysis of
Mayo
explains and develops basic principles set out in Flook,
it
seems appropriate to refer to the resultant analytical framework
as the
Flook-Mayo framework for analysis of claimed inventions
for
patent-eligibility under Section 101, where such claimed
inventions
substantially implicate laws of nature, natural phenomena,
abstract
ideas and the like.
- Laws of nature, natural phenomena and
abstract ideas are
not in themselves patent-eligible subject
matter
- Nevertheless, useful applications of laws of nature,
natural
phenomena and abstract ideas may be patent-eligible under Section 101
of
Title 35 of the United States Code, provided that such an application
also
contains an inventive concept that is sufficient to ensure that
the
claimed subject matter is indeed a new and useful invention
within the
meaning of the statute.
- A claim is unlikely to be patent-eligible
under Section 101
if it effectively preempts most if not all useful
applications
of a law of nature, natural phenomenon or abstract idea,
either
generally or within a particular field of application (e.g.,
catalytic
conversion of hydrocarbons, medical diagnosis and
treatment, financial
information systems, communication over
computer networks, online commerce). In
such cases, the claim
would in effect be drawn to the judicially-excluded
subject matter
itself.
- Where a claim substantially implicates
judicially-excepted
subject matter, comprising laws of nature, natural phenomena
or
abstract ideas, the remaining elements of the claim should involve
more than
just well-understood, routine, conventional activity within
the appropriate art.
Inventions that would be obvious to the skilled
artisan (or person having
ordinary skill in the art) informed of the
judicially-excepted subject matter
would be unlikely to achieve the
threshold for invention required to justify the
award of monopolies with
"metes and bounds" determined in accordance
with Sections
102 and 103 of Title 35 of the United States Code. Examples of
such
routine conventional activity would include routine data-gathering
steps,
"insignificant post-solution activity", prescription of
approved
medications by medical professionals, routine blood tests,
use of standard
statistical methods for analysis of time-series
data, and conventional
computer-implementation of well-understood
business methods such as hedging,
escrow, and financial book-keeping.
Moreover the teaching that results from a
bare statement or description
of a law of nature, natural phenomenon, abstract
idea, mathematical
formula or algorithm may well be sufficient in itself to
suggest
to the skilled artisan useful applications involving no more than
such
conventional and routine activity (e.g., surveying techniques suggested
by
theorems in geometry and trigonometry, automated conversions between
data
representations, computer-automation of methods for structuring
financial
transactions, indications to adjust dosage of prescribed
medications in
accordance with the results of blood tests).
On the Nature of
Computer-Implemented Processes
A process operating on a computing
device to manipulate data
and information proceeds in general at three distinct
levels:
the physical, logical and semantic levels.
Such
a process operates at the physical level in accordance with
the laws of
physics, and typically involves the transmission of electrical
and/or optical
signals in electical circuits and other media.
At the logical
level the data is represented either in
numerical form, or else by means of
words (or strings)
of letters or characters taken
from some alphabet.
The alphabet is a finite set whose elements are
signs that
inherently carry no specific meaning. The appropriate
alphabet
might be represented by the ASCII or EBCDIC codings, or the
Unicode
standard, or specific encodings of Unicode, such as UTF-8 and
UTF-16,
that represent unicode characters in terms of single bytes or
short
sequences of bytes. The "letters" of the chosen alphabet
might
be words in some ancient indecipherable language. In some areas
of
application, the appropriate alphabet might be chosen for the purpose
of
representing elements of some logical or mathematical structure
(e.g., the
vertices and edges of a graph). There are standard data
structures, well-known
in the arts of computer programming and data
processing, which include linear
arrays, multidimensional arrays and
associative arrays. There are also standard
methods for serializing
data in multidimensional and associative arrays that can
represent
such data in terms of character strings: one such is the JSON
standard,
implemented in many computer languages. A computer-implemented
process
for manipulating information will typically transform such strings
that
in themselves carry no inherent meaning. Such data structures
and
processes are the subject matter of the information sciences,
which
include the disciplines of formal logic, complexity
theory,
information theory (which includes the study of
algorithmic
entropy and data compression), coding theory
(which includes the
study of error-correcting codes), cryptology,
graph theory and
mathematical linguistics. In addition,
mathematical fields such as
Fourier analysis and wavelet
theory have relevance for
computer-implemented processes involving
video, graphical and audio data in
numerical form. It should be noted
that these disciplines within the
information sciences are recognized
disciplines within mathematics and
theoretical computer science.
The operation of the computer-implemented
process
at the semantic level will in general be determined by the
nature
and significance of the information to be processed.
In some processes,
such as the processing of graphical images
and visual and audio data, there may
be a close correlation
between the unfoldings of the process at all three
levels.
Semantically, a data idem might for example represent the
brightness
of a specific pixel on a visual display at a given
time, and it may be stored
within a data structure in computer
memory that maps in a straightforward
fashion to the relevant pixel.
Innovation with regard to such processes,
implemented by microprocessors
and similar devices, would be expected to result,
for example, in
technological advances in the design of digital cameras and
mobile
communication devices.
However, in the case of other
computer-implemented processes,
the nature of the ingredients of the process may
not correlate
between the various levels. A machine can no more create and
modify
irrevocable time-invariant obligations or collateralized
credit
default swaps than it can manufacture injunctions,
justice or
committee procedure. In particular, in the
case of financial information
systems, the significance of the ingredients
of the process is determined by how
they are regarded and interpreted
by individuals, creditors, debtors, banks,
courts, statutes,
regulatory bodies, international treaties, and the like, and
may
well depend on choice of jurisdiction. In such instances, there
is unlikely
to be any genuine correlation between the physical
process that unfolds at the
physical level on the computing
device and the business method that
unfolds at the semantic
within the relevant business or financial
institution.
Implications for Claim
Construction
According to Section 101 of the Statute, a
patent-eligible
invention must be a "new and useful process,
machine,
manufacture, or composition of matter" or
"any new and useful
improvement thereof".
It would surely follow from this that a claim to
a
computer-implemented invention should place the claimed
invention within one
of the statutory categories, and,
moreover, the claim limitations should be
appropriate
to the relevant category. A machine is characterized
through its
construction as a physical device and
its operation in the physical world. It
surely follows
that, where a computer-implemented "system" is
claimed
as a machine, then claim limitations ought to
be limitations on the nature of
the machine, considered
as a physical machine.
Now, limitations that
concern the enfolding, at the logical
level of processes running within a
machine may be relevant to
the physical design and operation of the machine,
considered purely
as a machine. Improvements in software may result in faster
and more
energy-efficient algorithms, better file and signal compression,
sharper
images, better sound and video, improved searching capabilities,
etc.
However the same could not always be said of claim limitations
that
restrict the enfolding of processes running on the machine at
the
semantic level, especially in cases where the purported machine
is a
programmed computer implementing a business method. Does the fact
that a
particular value stored in a storage unit and manipulated by a
computer is
required to be a irrevocable time-invariant obligation
truly limit the
operation of the machine, considered purely as a physical
device operating
within the physical world? Such limitations surely
limit only the manner in
which the machine is used, and surely
ought either to be rejected on the
grounds of being indefinite,
or else should be ignored as vacuous for the
purposes of construing a
machine claim.
Processes and machines of the
sort that were traditionally
regarded as patent eligible may incorporate
computers or microprocessors
for the purposes of information processing.
Moreover the use of computers
to automate tasks involving the maintenance of
financial information,
recording inventories, keeping personal records etc. is
commonplace
in the 21st century. The programming necessary for
computer-automation
of routine book-keeping and data maintenance using standard
software tools
would surely represent well-understood, routine, conventional
activity
within the art of computer programming and automation of business
processes.
This would in particular be the case where the program implements
a
logic flow that corresponds to a flow of financial information
depicted in flow
diagrames such as are to be found in patent applications
drawn to systems for
doing business. Where such a process can be
specified at the semantic
level, through the description of
of sequences of routine financial
transactions, or by means of
flow charts indicating the basic steps of a
business process,
the computer-implementation of such a process should neither
add
to nor detract from the patent-eligibility of the process
in
question.
If the claims are to be considered to be definite,
and
capable of reading on a statutory invention, one would
surely expect that a
claim to a computer-implemented
"system" would either be drawn to a
machine
or apparatus, with claim limitations representing
specific limitations
on the physical construction or
operation of the machine or apparatus, or else
would
be drawn to a computer-implemented process,
with claim limitations
appropriate for processes.
Beauregard Claims
A
Beauregard claim is a claim to a computer-readable
medium storing
computer code which, when run on a computer, will
cause the computer to execute
some process. It would not normally
be possible to insert the medium into a
computer without the
intervention of an operating system and appropriate
software,
unless the computer can be booted directly from the
computer-readable
medium in question. If the medium contains software
written
for a PC running under some version of Microsoft Windows, it may
not
cause an Apple computer or a computer running Linux or Solaris
to execute the
stored computer code. Where programs a written
to run on .NET Framework, they
would not run on earlier Windows
operating system that do not provide a .NET
framework. A program
implementing a graphical user interface built using Qt
widgets may
not run computer with a desktop environment built around GTK
widgets.
It is the interaction between of the computer program product
on the
computer-readable medium and the programs running on the
general-purpose
computer that convert the computer into a
device for carrying out the process
specified in the
patent. Claiming the computer-readable medium alone using
a
Beauregard claim is akin to claiming a key for opening a
door, where the
corresponding lock is not specified or determined.
It is the combination of the
key and the lock which opens the
door.
A Pragmatic
Consideration
Suppose that alleged patent infringement of some
allegedly
innovative application of monads in the functional
programming
language Haskell were to give rise to a lawsuit. Or suppose
that
the alleged infringement concerned subtle issues
centering on the implementation
of iterators, coroutines,
closures or reflection in a modern computer
language.
Is it reasonable to expect that the lawyers and judges
would be able
to master the briefs, construe the patent
claims, present the arguments and
instruct a jury,
so that the jury is in a position to deliver a fair verdict
as
to whether or not infringement occurred?
[ Reply to This | # ]
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Authored by: IMANAL_TOO on Saturday, March 16 2013 @ 04:45 AM EDT |
Are Patents a USS Montana, heading but not heeding?
www.youtube.com/watch?v=U33Xg
91HAlo
Your call.
--- ______
IMANAL
. [ Reply to This | # ]
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- good one. - Authored by: jesse on Saturday, March 16 2013 @ 01:40 PM EDT
|
Authored by: albert on Saturday, March 16 2013 @ 04:11 PM EDT |
I reviewed the background on the rubber curing process which helped me
understand the patent a little better.
The patent application lists the inventors. They are employed by Signature
Control Systems, Inc. Denver,CO.
Signature Control Systems, Inc. manufactures a product called SmartTrac, which
is rubber vulcanizing machine controller. You install it on your machine, along
with the required sensors. See
http://www.signaturecontrol.com/industry_rubber.asp
There's no question that the process parameters are the subject of prior art,
it's cited in the application. Also cited are various algorithms included in
the software.
I listed the claims, then eliminated the computer and software ones. What's
left is a general explanation of the process, and some very specific details of
the impedance sensor. (I assumed the impedance sensor is patented separately).
Here are my conclusions(limited by lack of research time):
1. Curing rubber using impedance (dielectric) sensors is not unique.
2. The process control system uses standard algorithms. Statistical process
control methods, feedback loops, and evaluation of historical process data are
not new.
3. The system is probably an improvement over existing ones, but is that
patentable?
4. Removing software from the claims results in one sensor which may be
patentable.
I believe the patent examiner had it right in rejecting the application, but for
the wrong reason. This is a software patent for a process that is simply an
improvement over existing ones. (We used to call this 'competition') The flow
charts could be applied to many processes, by changing only the names of the
parameters. It may be a fantastic improvement, maybe only marginal. Does it
matter?
Should we allow s/w patents? This patent hardly affects anyone, in the larger
scheme of things. How much better would the world be if we had slightly
cheaper, more consistent rubber products? Not much better.
Now we can get patents on all software that controls all machines and processes
that make all products. EP 1534494 A1 lays out exactly what needs to be done.
[ Reply to This | # ]
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Authored by: macliam on Sunday, March 17 2013 @ 08:56 AM EDT |
Quoted below is a substantial extract from the opinion of Judge Rich in the
case In Re Bergy/Chakrabarty at the Court of Customs and Patent Appeals
(CCPA). That court was one of those that came together to form the Federal
Circuit. Judge Rich's opinion sets out the Doctrine of the Three Doors
that guides the statutory interpretation of sections 101, 102 and 103 of the
Patent Statute (Title 35 of the USC) by the Federal Circuit to the present day.
The Doctrine of the Three Doors set out by Giles Sutherland Rich (who together
with Pasquale Federico drafted the 1952 Patent Act) is alive and kicking today,
and is the basis on which certain Federal Circuit Judges including Rader, Newman
and Linn affirm the patent-eligibility of 'inventions' represented by troll
patents on delivery of advertisements over the internet, on computer-assisted
business methods, and on diagnostic procedures etc. This doctrine has been
repudiated, to a significant extent, by the Supreme Court in Mayo v. Prometheus, but it
remains to be seen whether or not the Federal Circuit will come to grips with
the implications of Mayo in the case CLS v. Alice currently being
considered en banc by the Federal Circuit. I suggest that the Three
Doors framework underlies Judge Moore's interjections at the oral arguments
in CLS v. Alice, and represent the basis on which she finds the display
of hardware and the flow charts to be persuasive evidence of
patent-eligibility.
The opinion is difficult to find on the Web. Google
do not yet seem to have made it available. I found the excerpt below here in a collection
of cases and materials for a university course, Computer Law 484,
delivered by Professor Richard H. Stern at the George Washington University
Law School. I have added HTML
markup.
________________
Rich,
Judge.
Introduction
These appeals are from decisions of
the Board of Appeals (board)
of the PTO by dissatisfied applicants for patents.
We reverse.
These two cases come before us for the second time under
the
circumstances hereinafter detailed. Since our first decisions, they
have
been to the United States Supreme Court and back without any decision
by
that Court. The question before us is a limited one of statutory
construction,
not whether appellants have made and disclosed patentable
inventions. The real
question before us is whether appellants are to be
allowed to define their
inventions in a certain way in claims pursuant
to 35 U.S.C. § 112. This
question, which is the same in each case,
involves the construction and
application of 35 U.S.C. § 101, more
particularly the meaning to be given
to the word “manufacture” in that
section. The sole issue, as the
PTO chooses to view it, is whether an
invention [of bacteria], otherwise
patentable under the statute, is
excluded from the categories of subject matter
which may be patented,
set forth in § 101, because it is
“alive.” First, however, we review
the history of this litigation to
show the posture of the cases as they
are now before us
again.
Procedural Background
In re Bergy, 563 F.2d 1031
(CCPA 1977), vacated sub nom. Parker
v. Bergy, 438 U.S. 932 (1978), was decided
by us Oct. 6, 1977. We
reversed a decision of the board, which affirmed the
final rejection
by the PTO examiner of claim 5 of Bergy's application for
patent. A
petition for a writ of certiorari in Bergy was filed in the
Supreme
Court by the Solicitor General on behalf of the Acting Commissioner
of
Patents and Trademarks. The Court granted the petition June 26, 1978,
and on
the same day issued the following order:
It is ordered and adjudged
by this Court that the judgment of the
CCPA in this cause is vacated; and
that this cause is remanded to
the CCPA for further consideration in light
of Parker v. Flook,
437 U.S. 584 (1978).
Flook was a case from this
court involving a computerized method of
updating alarm limits by application of
a mathematical formula. It was
decided by the Supreme Court, four days before
the date of the foregoing
order in Bergy. The Court gave no intimation of what
bearing it thought
Flook has on the single issue in these appeals, except as it
may be
gleaned from the Flook opinion.
Clearly, our assigned task is
first to determine the bearing of Flook,
if any, on these two appeals. This
requires, as we see it, consideration
not only of what was decided in Flook but
examination of everything that
was said in the opinion. Preliminary to that
consideration, however,
and laying the groundwork therefor, we will examine the
Constitutional
basis for the patent system and the anatomy of the statutes
Congress
has enacted insofar as they are relevant to the problem before
us.
The Constitution
The grant of power to Congress to
establish a patent system is in
these familiar words of Art. I, § 8, cl. 8
and cl. 18:
The Congress shall have Power… [8] To
promote the Progress of
Science and useful Arts, by securing for limited Times
to Authors
and Inventors the exclusive Right to their respective Writings
and
Discoveries;… And [18] To make all Laws which shall be necessary
and
proper for carrying into Execution the foregoing
Powers….
Scholars who have studied this provision, its
origins, and its
subsequent history, have, from time to time, pointed out that
it [cl. 8]
is really two grants of power rolled into one; first, to establish
a
copyright system and, second, to establish a patent system. Their
conclusions
have been that the constitutionally stated purpose of granting
patent rights to
inventors for their discoveries is the promotion of
progress in the
“useful Arts,” rather than in “Science.” In enacting
the
1952 Patent Act, both houses of Congress adopted in their reports
this
construction of the Constitution in identical words, as
follows:
The background, the balanced construction, and the
usage current then
and later, indicate that the constitutional provision is
really two
provisions merged into one. The purpose of the first provision is
to
promote the progress of science by securing for limited times to
authors the
exclusive right to their writings, the word “science”
in this
connection hav ing the meaning of knowledge in general,
which is one of its
meanings today. The other provision is that
Congress has the power to promote
the progress of useful arts by
securing for limited times to inventors the
exclusive right to
their discoveries. The first patent law and all patent laws
up to
a much later period were entitled “Acts to promote the progress
of
useful arts.”
It is to be observed that the
Constitutional clause under
consideration neither gave to nor preserved in
inventors (or authors)
any rights and set no standards for the patentability of
individual
inventions; it merely empowered Congress, if it elected to do so,
to
secure to inventors an “exclusive right” for an unstated
“limited”
time for the stated purpose of promoting useful arts. We
have previously
pointed out that the present day equivalent of the term
“useful arts”
employed by the Founding Fathers is
“technological arts.” The only
restraints placed on Congress
pertained to the means by which it could
promote useful arts, namely, through
the device of securing “exclusive
rights” which were required to be
limited in time, a device known to
governments for centuries. The conditions to
be imposed on the granting
of such rights, which have varied through the years,
were left to Congress
to devise.
Confusion persisted, however. We turn
now to a consideration of how
Congress has implemented the power delegated to
it.
Anatomy of the Patent Statute
The reason for our
consideration of the statutory scheme in relation
to its Constitutional purpose
is that we have been directed to review
our prior decisions in the light of
Flook and we find in Flook an
unfortunate and apparently unconscious, though
clear, commingling of
distinct statutory provisions which are conceptually
unrelated, namely,
those pertaining to the categories of inventions in §
101 which may
be patentable and to the conditions for patentability demanded by
the
statute for inventions within the statutory categories, particularly
the
nonobviousness condition of § 103. The confusion creeps in through
such
phrases as “eligible for patent protection,” “patentable
process,”
“new and useful,” “inventive
application,” “inventive concept,” and
“patentable
invention.” The last mentioned term is perhaps one of the most
difficult
to deal with unless it is used exclusively with reference to
an invention which
complies with every condition of the patent statutes
so that a valid patent may
be issued on it.
The problem of accurate, unambiguous expression is
exacerbated by
the fact that prior to the Patent Act of 1952 the words
“invention,”
“inventive,” and “invent” had
distinct legal implications related to the
concept of patentability which they
have not had for the past quarter
century. Prior to 1952, and for sometime
thereafter, they were used by
courts as imputing patentability. Statements in
the older cases must be
handled with care lest the terms used in their reasoning
clash with the
reformed terminology of the present statute; lack of meticulous
care
may lead to distorted legal conclusions.
The transition made in
1952 was with respect to the old term
“invention,” imputing
patentability, which term was replaced by a
new statutory provision, § 103,
requiring nonobviousness, as is well
explained and approved in Graham v. John
Deere Co. Graham states that
there are three explicit conditions, novelty,
utility, and nonobviousness,
which is true, but there is a fourth requirement,
which, alone, is
involved here. This was also the sole requirement involved in
Flook.
The Revised Statutes of 1874, which contained the primary
patent
statutes revised and codified in 1952, lumped most of the conditions
for
patentability in a single section, § 4886, as did all of the prior
statutes
back to the first one of 1790. The 1952 Act divided that statute
up into its
logical components and added the nonobviousness requirement,
which until then
had been imposed only by court decisions. This attempt
at a clear-cut statement
to replace what had been a hodgepodge of
separate enactments resulted in a new
and official Title 35 in the
United States Code with three main divisions. Part
II, here involved,
covers patentability of inventions and the grant of
patents.
These cases involve only § 101, as did Flook. Achieving
the
ultimate goal of a patent under those statutory provisions involves,
to use
an analogy, having the separate keys to open in succession the
three doors of
sections 101, 102, and 103, the last two guarding the
public interest by
assuring that patents are not granted which would take
from the public that
which it already enjoys (matters already within its
knowledge whether in actual
use or not) or potentially enjoys by reason
of obviousness from knowledge which
it already has.
Inventors of patentable inventions, as a class, are
those who bridge
the chasm between the known and the obvious on the one side and
that
which promotes progress in useful arts or technology on the
other.
The first door which must be opened on the difficult path
to
patentability is § 101 (augmented by the § 100 definitions). The
person
approaching that door is an inventor, whether his invention is
patentable
or not. There is always an inventor; being an inventor might be
regarded
as a preliminary legal requirement, for if he has not invented
something,
if he comes with something he knows was invented by someone else,
he
has no right even to approach the door. Thus, section 101 begins with
the
words “Whoever invents or discovers,” and since 1790 the
patent
statutes have always said substantially that. Being an inventor or
having
an invention, however, is no guarantee of opening even the first
door. What kind
of an invention or discovery is it? In dealing with the
question of kind, as
distinguished from the qualitative conditions which
make the invention
patentable, § 101 is broad and general; its language
is: “any…
process, machine, manufacture, or composition of matter, or
any…
improvement thereof.” Section 100(b) further expands “process”
to
include “art or method, and… a new use of a known process,
machine,
manufacture, composition of matter, or material.” If the
invention,
as the inventor defines it in his claims (pursuant to § 112,
second
paragraph), falls into any one of the named categories, he is allowed
to
pass through to the second door, which is § 102; “novelty and loss
of
right to patent” is the sign on it. Notwithstanding the words
“new
and useful” in § 101, the invention is not examined under
that statute
for novelty because that is not the statutory scheme of things or
the
long-established administrative practice.
Section 101 states three
requirements: novelty, utility,
and statutory subject matter. The understanding
that these three
requirements are separate and distinct is long-standing and has
been
universally accepted. The text writers are all in accord and treat
these
requirements under separate chapters and headings. Thus, the questions
of
whether a particular invention is novel or useful are questions wholly
apart
from whether the invention falls into a category of statutory
subject matter. Of
the three requirements stated in § 101, only two,
utility and statutory
subject matter, are applied under § 101. As we
shall show, in 1952 Congress
voiced its intent to consider the novelty of
an invention under § 102 where
it is first made clear what the statute
means by “new”,
notwithstanding the fact that this requirement is first
named in §
101.
The PTO, in administering the patent laws, has, for the most
part,
consistently applied § 102 in making rejections for lack of novelty.
To
provide the option of making such a rejection under either § 101 or
§
102 is confusing and therefore bad law. Our research has disclosed
only
two instances in which rejections for lack of novelty were made by the
PTO
under § 101, In re Bergstrom, 427 F.2d 1394 (CCPA 1970); In re
Seaborg,
328 F.2d 996 (CCPA 1964). In In re Bergstrom we in effect treated
the
rejection as if it had been made under § 102, observing in the
process
that “the word 'new' in § 101 is to be construed in
accordance with
the provisions of § 102.”
The second door
then, as we have already seen, is § 102 pursuant
to which the inventor's
claims are examined for novelty, requiring,
for the first time in the
examination process, comparison with the prior
art which, up to this point, has
therefore been irrelevant.
An invention may be in a statutory category
and not patentable for
want of novelty, or it may be novel and still not be
patentable because
it must meet yet another condition existing in the law since
1850 when
Hotchkiss v. Greenwood, 11 How. 248, was decided. This condition
developed
in the ensuing century into the “requirement for
invention.” See Graham
v. John Deere Co. The third door, under the 1952
Act, is § 103 which
was enacted to take the place of the requirement for
“invention.” We
need not examine this requirement in detail for it
is not involved in
the present appeals, and was not involved in
Flook.
If the inventor holds the three different keys to the three
doors, his
invention (here assumed to be “useful”) qualifies for a
patent, otherwise
ot; but he, as inventor, must meet still other statutory
requirements in
the preparation and prosecution of his patent application. We
need not
here consider the latter because appellants have not been faulted
by
the PTO in their paperwork or behavior. The point not to be forgotten
is that
being an inventor and having made an invention is not changed
by the fact that
one or more or all of the conditions for patentability
cannot be met. Year in
and year out this court turns away the majority
of the inventors who appeal here
because their inventions do not qualify
for patents. They remain inventions
nevertheless. It is time to settle
the point that the terms invent, inventor,
inventive, and the like are
unrelated to deciding whether the statutory
requirements for patentability
under the 1952 Act have been met. There is always
an invention; the issue
is its patentability. Terms like “inventive
application” and “inventive
concept” no longer have any useful
place in deciding questions under the
1952 Act, notwithstanding their universal
use in cases from the last
century and the first half of this one. As Mr.
Justice Holmes said in
Towne v. Eisner, 245 U.S. 418, 425 (1918), “A
word… may vary greatly in
color and content according to the
circumstances and the time in which it
is used.” And Mr. Justice
Frankfurter said in Shapiro v. United States,
335 U.S. 1, 56 (1948), “It
is the part of wisdom, particularly for judges,
not to be victimized by
words.”
We have observed with regret that the briefs filed by the
Solicitor
General for Acting Commissioner Parker in Parker v. Flook, a
case
which, as the Court noted, “turns entirely on the proper
construction
of § 101,” badly, and with a seeming sense of purpose,
confuse the
statutory-categories requirement of § 101 with a requirement
for
the existence of “invention.” This they do by basing argument
on
the opening words of § 101, “Whoever invents or discovers,”
thereby
importing into the discussion of compliance with § 101 a
requirement
for “invention” in a patentability sense. But there has
not been a
requirement for “invention” in the patentability sense in
the laws
since 1952 the requirement was replaced by the § 103 requirement
for
nonobviousness. Graham v. John Deere Co.
Furthermore, when one has
only compliance with § 101 to consider,
the sole question, aside from
utility, is whether the invention falls into
a named category, not whether it is
patentable. Falling into a category
does not involve considerations of novelty
or nonobviousness and only
those two considerations involve comparison with
prior art or inquiry as
to whether all or any part of the invention is or is not
in, or assumed
to be in, the prior art or the public domain. Prior art is
irrelevant to
the determination of statutory subject matter under § 101. An
invention
can be statutory subject matter and be 100% old, devoid of any
utility, or
entirely obvious. This is our understanding of the statute and the
basis
on which we proceed to the further consideration of these
appeals.
The error of the line of argument pursued in the Solicitor
General's
briefs in Flook is sufficiently illustrated by quoting from the
summation
of that argument in the opening paragraphs of the Reply Brief for
the
Petitioner:
1. Respondent errs in asserting that our
argument confuses the
standard of nonobviousness prescribed in 35 U.S.C. §
103 and the
requirement of statutory subject matter under 35 U.S.C. § 101.
As
respondent recognizes, the patent examiner's sole ground for rejection
of the
claims at issue was that they did not cover statutory subject
matter under 35
U.S.C. § 101. We do not contend that respondent's
particular algorithm for
computing updated alarm-limits is not
novel or is obvious within the meaning of
35 U.S.C. §§ 102 or
103. We simply contend that the subject matter he
seeks to patent is
unpatentable under 35 U.S.C. § 101, because it is not an
“[invention]
or [discovery]” within the meaning of that
Section.
The plain language of § 101 requires that the
application of a
mathematical algorithm involve invention or discovery for it
to
be patentable. It states that patents may issue only to one
who
“invents or discovers any… process, machine, manufacture,
or
composition of matter” (emphasis supplied). This language dates
from
the original Patent Act of 1790. In none of the subsequent amendments
to
the patent statute has Congress altered this basic requirement.
Yet
respondent would have the courts ignore this explicit language
and adopt a new
rule that would allow patents to issue to anyone who
“[applies for a
patent on] any… process, machine, manufacture, or
composition of
matter,… subject to the conditions and requirements
of this title.”
Congress could have changed the language of § 101
to broaden the statutory
standards of patentability, but it did
not; indeed, respondent agrees that in
the 1952 Patent Act revision,
Congress intended to codify the existing judicial
precedents regarding
the standard of patentability.
It is transparently
clear that the above argument makes the opening
words of § 101,
“Whoever invents or discovers,” into a requirement for
compliance
with § 103, the 1952 replacement for the old requirement
for
“invention”; one must get through the third door in order to get
past
the first one! That is not the statutory scheme.
The statement that
respondent Flook was asking for a rule under
which “anyone who [applies
for a patent on] any… ”of the § 101
named categories should
have a patent “issue” to him is subversive
nonsense. There is no
issuance without examination for novelty and
nonobviousness.
The
statement that “Congress could have changed the language of
§ 101 to
broaden the statutory standards of patentability, but it did
not” is
wholly beside the point because §101 was never intended to be
a
“standard of patentability”; the standards, or conditions as the
statute
calls them, are in § 102 and § 103. The naming of the
categories of
inventions that may be patented, in whatever statute appearing,
has
never supplied a standard. The question here, as it always has been,
is: are
the inventions claimed of a kind contemplated by Congress as
possibly patentable
if they turn out to be new, useful, and unobvious
within the meaning of those
terms as used in the statute.
Before explaining the Bergy and
Chakrabarty inventions, we shall
state our understanding of the views expressed
by the Supreme Court
in the Flook opinion and the light shed thereby on the
problems before
us. We are redeciding these appeals, as directed, “in
light of Parker
v. Flook.” The parties were given the opportunity in
briefs and oral
argument to tell us what bearing Flook has on these appeals. As
might
have been foreseen, the results are not helpful.
The PTO says the
fact of remand should mandate affirmance and be
“taken to buttress the
positions taken by the dissenting judges.” The
only specific thing seized
upon, as a launching pad for argument, is a
rhetorical passage quoted from
Deepsouth Packing Co. v. Laitram Corp.,
406 U.S. 512 (1972), about looking for a
signal from Congress before
changing well-established law, a situation in no way
involved here as
will be discussed later. As everyone has conceded, we are
dealing with
appeals raising an issue of first impression in the courts, the
effect
on compliance with § 101 of the fact of being
“alive.”
The only thing we see in common in these appeals
and in Flook is
that they all involve § 101. Flook was a review of one of
the many
appeals we have heard involving the general theme of the
patentability
of computer programs. The only way to claim a program is as a
programmed
“machine” or as a “process” or
“method.” The Flook invention was claimed
as a “process”
under § 101. That was the second case of its kind from
this court reviewed
by the Supreme Court, the first being Gottschalk
v. Benson, 409 U.S. 63 (1972),
which involved two method claims. Method
and process claims are equivalents.
Flook appears to have been decided on
the authority of Benson. No method or
process claim is here involved. In
fact, the PTO has allowed (all three doors,
§§ 101-102-103, passed)
Bergy's method claims 1 through 4 and
Chakrabarty's process claims 27
through 29, thereby holding that the process
aspects of their inventions
are not only subject matter within § 101 but
also new and unobvious
under § 102 and § 103, therefore patentable.
Flook was concerned only
with the question of what is a “process”
under § 101, in the context
of computer program protection. No such issue
is presented in either of
these appeals.
There is no better authority
on what the Supreme Court has decided
in a case than the Court itself and we are
fortunate to have its own
summary of what it decided in Flook. It appears at the
end of footnote
18, 437 U.S. at 595, as follows: “Very simply, our holding
today is
that a claim for an improved method of calculation, even when tied to
a
specific end use, is unpatentable subject matter under §
101.”
We do not venture to elaborate. The appeals here involve no
method
of calculation, and the Flook holding appears to have no
bearing.
As indicated earlier, we deem it our duty to seek whatever
additional
light there may be in the Court's opinion on the meaning of §
101,
without restricting ourselves to the holding. It is stated to be
well
established in patent law that the following are not within the
statutory
categories of subject matter enumerated in § 101 and its
predecessor
statutes as interpreted through the years: principles,
laws of nature, mental
processes, intellectual concepts, ideas,
natural phenomena, mathematical
formulae, methods of calculation,
fundamental truths, original causes, motives,
the Pythagorean theorem,
and the computer-implementable method claims of Benson.
The present
appeals do not involve an attempt to patent any of these things
and
the Court's review of this hornbook law is, therefore, inapplicable to
the
issue before us, which involves only the construction of the
terms
“manufacture, or composition of matter.”
Another
principle stated in Flook is that a “mathematical algorithm”
or
formula is like a law of nature in that it is one of the “basic tools
of
scientific and technological work” and as such must be deemed to
be
“a familiar part of the prior art,” even when it was not
familiar,
was not prior, was discovered by the applicant for patent, was
novel
at the time he discovered it, and was useful. This gives to the
term
“prior art,” which is a very important term of art in patent
law,
particularly in the application of § 103, an entirely new
dimension
with consequences of unforeseeable magnitude.
Insofar as the
present appeals are concerned, the foregoing novel
principle has no
applicability whatever since, as we have said, no
formula, algorithm, or law of
nature is involved, and there has been
no rejection on prior art of any kind in
either application. In each,
both the examiner and the Board of Appeals
expressly stated that no
references evidencing prior art have been relied on or
applied.
Insofar as the general patent law is concerned, however,
the
above-stated novel Flook doctrine may have an unintended impact in
putting
an untimely and unjustifiable end to the long-standing proposition
of
law that patentability may be predicated on discovering the cause of
a
problem even though, once that cause is known, the solution is brought
about
by obvious means. Such causes may often be classed as laws of
nature or their
effects. For example, see Eibel Process Co. v. Minnesota
" Ontario Paper
Co., 261U.S. 45, 67-69 (1922). The potential for great
harm to the incentives of
the patent system is apparent.
It is one thing to say that a principle,
natural cause, or formula,
per se, is not within the categories of § 101,
but quite another to
say it is “prior art” in determining the
nonobviousness of an invention
predicated on it even though the inventor
discovered it.
One final matter with respect to Flook remains. In the
PTO
supplemental brief on remand, the solicitor places great emphasis on
part of
a passage which Flook quoted from the opinion of Mr. Justice
White for the
majority in Deepsouth Packing Co. v. Laitram Corp.:
We would require a
clear and certain signal from Congress before
approving the position of a
litigant who, as respondent here, argues
that the beachhead of privilege is
wider, and the area of public
use narrower, than the courts had previously
thought. No such signal
legitimizes respondent's position in this
litigation.
While the PTO solicitor believes that the entire opinion in
Flook is
relevant to the issue here, he says “the above quotation from
Deepsouth
reaches the heart of the matter.” We disagree. We cannot find in
this
passage any clear direction signal unless we wrench it out of the
context
in which it belongs and use it in a manner unwarranted by the
situaion
which spawned it.
When we examine the portion of the paragraph
in Deepsouth (also
quoted in Flook) just preceding the solicitor-quoted passage,
its meaning
becomes clear. The Court stated: “It follows that we should
not expand
patent rights by overruling or modifying our prior cases construing
the
patent statutes, unless the argument for expansion of privilege is based
on
more than mere inference from ambiguous statutory language.” The issue
in
Deepsouth was whether petitioner infringed by selling the unassembled
parts of
machines embodying patented combinations to foreign buyers who
assembled and
used them abroad. The relevant statutory provision, 35
U.S.C. § 271,
defines infringement by defining the infringer as anyone
who “without
authority makes, uses or sells any patented invention,
within the United States
during the term of the patent therefor.” In
deciding the case, the Court
pointed out that a long line of judicial
authority had established the meaning
of the term “makes” contrary to the
meaning urged by the respondent,
with the result that the petitioner's
sales of the parts to foreign buyers were
not sales of “any patented
invention” which was “made”
in the United States, and, thus, were not
acts of infringement.
It is
in this context that the Court made the quoted statement. The
respondent in
Deepsouth was asking the Court to expand established patent
rights
territorially, or to treat making parts of a machine as making
the machine, by
modifying prior cases construing the patent statutes. The
Court refused,
producing the quoted passage in the process.
We do not find the quoted
passage to have any bearing on our
problem. We are not faced with a litigant
urging upon us a construction
of § 101 which is at odds with established
precedent. Rather, we deal
with a case of first impression. Not having been
asked to make a change
in existing law or to overrule or modify any case or to
expand any right
given by Congress, we need in this case no signal from that
body.
To conclude on the light Flook sheds on these cases, very
simply,
for the reasons we have stated, we find none.
[The opinion
continues to affirm the patent-eligibility of the bacteria of Bergy and
Chakrabarty. The case of Bergy became moot, and therefore the Supreme Court did
not rule on that case. The Supreme Court did consider Chakrabarty's bacteria in
Diamond v. Chakrabarty. The judgement of the
Supreme Court affirms the decision of the CCPA with regard to
Chakrabarty, but also reaffirms Flook and distinuishes
Chakrabarty from Flook.]
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Authored by: macliam on Monday, March 18 2013 @ 05:18 AM EDT |
I claim:
- a printing press configured to print a text wherein at
least 8 of the strings 'Minas Tirith', 'Frodo', 'Elrond', 'Moria', 'Lothlorien',
'Galadriel', 'Samwise', 'Meriadoc', 'Theoden', 'Dunharrow', 'Bombadil' and
'Elessar' occur as substrings within said text;
- 2. the printing press
of claim 1 further configured to print a text wherein the strings 'Boromir',
'Faramir' and 'Denethor' occur as substrings in said text;
- a method of
printing texts wherein a text containing at least 20,000 characters is printed
on paper or rendered on an electronic display device and at least 8 of the
strings 'Minas Tirith', 'Frodo', 'Elrond', 'Moria', 'Lothlorien', 'Galadriel',
'Samwise', 'Meriadoc', 'Theoden', 'Dunharrow', 'Bombadil' and 'Elessar' occur as
substrings within said text;
- the method of claim 3 wherein the strings
'Boromir', 'Faramir' and 'Denethor' occur as substrings in said
text.
If you can convince the PTO that this machine is
useful, novel (in accordance with the requirements of Section 102)
and non-obvious (in accordance with sections 103), you are surely
entitled to a patent on this machine. The patent will cover all printing
presses configured to print a text satisfying the claim limitations, as and when
they are configured to do so. If the device is deemed to be useful then
the requirements of section 101 are satisfied because the printing press is a
machine. And in order to verify whether the conditions of sections 102 and 103
are satisfied, it will be necessary to conduct a prior art search of previous
patent applications and publications.
Of course the claims are not only
to printing presses configured to print specifically The Lord of the
Rings. The scope of the claims will also cover a printing press configured
to print a text containing sufficiently many of the words listed in the claim.
But the patent owner is not going to object to the entitlement to collect
royalties from the printing of such derivative works.
There might be
issues nevertheless with novelty. But if you were on the point of publishing a
book that you believed would be a bestseller, an analogous patent might be worth
the cost of obtaining it.
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Authored by: macliam on Monday, March 18 2013 @ 09:22 AM EDT |
The patent at issue is 7,346,545. As the issued
patent states:
co
The present invention is directed to a method
and system for disrtributing or obtaining products covered by intellectual
property over a telecommunications network whereby a consumer may, rather paying
for the products, choose to receive such products after viewing and/or
interacting with an interposed sponsor's or advertiser's message, wherein the
interposed sponsor or advertiser may pay the owner or assignee of the underlying
intellectual property associated with the product through an intermediary such
as a facilitator.
There are two independent claims. The
first, claim 8, is to a method for distribution of products, involving
steps of receiving, selecting, providing,
restricting, offering, facilitating, allowing,
presenting, recording and updating and receiving
payment. The other independent claim, claim 8, has similar steps. All
claims are method claims, and superficial examination of them would suggest the
steps of a business process, with no technical details.
Litigation
initiated by Ultramercial against Hulu, YouTube and Wildtangent in the district
court resulted in dismissal “for failure to claim statutory subject
matter”. The Federal Circuit reversed, in 2011, in the case Ultramercial v. Hulu. Randall R.
Rader, Chief Judge of the Federal Circuit wrote the per curiam opinion,
which was unanimous. The other circuit judges on the panel were Alan D. Lourie
and Kathleen M. O'Malley.
The opinion demonstrates the lengths that
Rader and his colleagues will go to avoid finding a patent claim ineligible
under Section 101 for failure to claim statutory subject matter.
First,
some remarks about the patent
specification. There are four diagrams. The first shows four computers
(typical PCs), with people standing on top of each computer, plus icons
representing folders, files, floppy disks and dollar bills, and various arrows
connecting them. The second figure is a flow chart of a business method, with
descriptions of the steps in plain English (with nothing whatsoever resembling
any sort of computer code): ‘Consumer enters Facilitator's URL’,
‘Consumer requests…’, ‘Facilitator
responds…’ etc.. Figures 3 and 4 are of a similar nature. The
standard parts of a patent specification follow. The detailed description of
the preferred embodiment follows, rresponding to Figures 2, 3 and 4, and
describing the steps performed by customers, facilitators, sponsors, etc., with
no disclosure of any sort of computer code. There is a modicum of technical
disclosure at the beginning of the description of the preferred embodiment:
“All of the principals preferably communicate over a telecommunications
network, such as the Internet, using their respective computers.”. Then
follow the claims.
“Nice work if you can get it! And you can get
it—if you try.”
So now let us see how Rader and his
colleagues address this meritorious advance over the prior art.
First
they comment on (lack of) claim construction:
The district
court dismissed Ultramercial's claims for failure to claim statutory subject
matter without formally construing the claims.… In this case, the
subject matter at stake and its eligibility does not require claim
construction.
Thus Rader and his colleagues have no issue with
the fact that the district court failed to construe the claims before dismissing
the suit.
Then some remarks on legislative intent.
In
Bilski, the Supreme Court explained that "[i]n choosing such expansive terms
modified by the comprehensive `any,' Congress plainly contemplated that the
patent laws would be given wide scope." 130 S.Ct. at 3225 (quoting Diamond v.
Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980)). After
all, the purpose of the Patent Act is to encourage innovation, and the use of
broadly inclusive categories of statutory subject matter ensures that "ingenuity
. . . receive[s] a liberal encouragement." Chakrabarty, 447 U.S. at 308, 100
S.Ct. 2204.
At least we are spared the usual “everything
under the sun” cite bite!
It is now time to move on to the
Three Doors:
More importantly, as § 101 itself
expresses, subject matter eligibility is merely a threshold check; claim
patentability ultimately depends on "the conditions and requirements of this
title," such as novelty, nonobviousness, and adequate disclosure. 35 U.S.C.
§ 101; see Classen Immunotherapies, Inc. v. Biogen IDEC, ___ F.3d ___, ___
(Fed.Cir.2011) (pointing out the difference between "the threshold inquiry of
patent-eligibility, and the substantive conditions of patentability"). By
directing attention to these substantive criteria for patentability, the
language of § 101 makes clear that the categories of patent-eligible
subject matter are no more than a "coarse eligibility filter." Research Corp.,
627 F.3d at 869. In other words, the expansive categories—process, machine,
article of manufacture, and composition of matter—are certainly not substitutes
for the substantive patentability requirements set forth in § 102, §
103, and § 112 and invoked expressly by § 101 itself. Moreover, title
35 does not list a single ineligible category, suggesting that any new,
nonobvious, and fully disclosed technical advance is eligible for protection,
subject to the following limited judicially created
exceptions.
Of course sections 102, 103 and 112 of the statute
have nothing whatsoever to say about laws of nature, natural phenomena and
abstract ideas. So our task today is to pilot the ship past the treacherous
shoals represented by those pesky “judicially-created exceptions”.
Indeed the “novelty” section (section 102) is concerned with filing
dates of patent applications, printed publications and the like. This suits our
friends in the Intellectual Property community, who go up the wall at any
suggestion that plants and bacteria found in the wild, human DNA, computer
assisted business methods and the like might fail the demands of a more rigorous
Section 101 jurisprudence.
Clearly the claims are not drawn to laws of
nature, nor to natural phenomena. So we have to finess the abstract idea
exception. Hmm!
Aha! The Supreme Court did not categorically exclude
business methods.
In line with the broadly permissive nature
of § 101's subject matter eligibility principles, judicial case law has
created only three categories of subject matter outside the eligibility bounds
of § 101— laws of nature, physical phenomena, and abstract ideas. Bilski,
130 S.Ct. at 3225. Indeed, laws of nature and physical phenomena cannot be
invented. Abstractness, however, has presented a different set of interpretive
problems, particularly for the § 101 “process” category.
Actually, the term “process” has a statutory definition that, again,
admits of no express subject matter limitation: a title 35 “process”
is a “process, art or method, and includes a new use of a known process,
machine, manufacture, composition of matter, or material.” 35 U.S.C.
§ 100(b). Indeed, the Supreme Court recently examined this definition and
found that the ordinary, contemporary, common meaning of “method”
may include even methods of doing business. See Bilski, 130 S.Ct. at 3228.
Accordingly, the Court refused to deem business methods ineligible for patent
potection and cautioned against “read[ing] into the patent laws
limitations and conditions which the legislature has not expressed.” Id.
at 3226 (quoting Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d
155 (1981)). And this court detects no limitations or conditions on subject
matter eligibility expressed in statutory language. See, e.g., Ass'n for
Molecular Pathology v. U.S. Patent & Trademark Office, 653 F.3d 1329, 1348
(Fed.Cir.2011) (patent-ineligible categories of subject matter are
“judicially created exceptions”); Prometheus Labs., Inc. v. Mayo
Collaborative Servs., 628 F.3d 1347, 1353 (Fed.Cir.2010), cert. granted, ___
U.S. ___, 130 S.Ct. 3543, 177 L.Ed.2d 1120 (2010) (patent-ineligible categories
are “not compelled by the statutory text”); see also Bilski, 130
S.Ct. at 3225 (Supreme Court acknowledging that judge-created “exceptions
are not required by the statutory text”).
We will ignore
the fact that, in Bilski, four justices favoured the categorical
exclusion of business methods, and that a fifth, Justice Scalia, joined Justice
Breyer in a concurrence that damned State Street and opined that not many
business methods would merit the protection of the patent laws. And maybe, if
we keep hammering on about it, the Supreme Court will finally get the message
and drop all that stupid nonsense concerning laws of nature, natural phenomena,
abstract ideas and the like.
The trouble is, this stuff does all look
rather abstract, and we cannot really point to much in the way of technical
detail. The best we can do is to sound off generally about the difficulty of
defining precisely what is meant by an “abstract idea”, proffer
dicta on the inapplicability of tests formulated during the “Industrial
Age” to the inventions of the “Information Age”. Then we can
cite Research Corp:
With this in mind, this court does
“not presume to define `abstract' beyond the recognition that this
disqualifying characteristic should exhibit itself so manifestly as to override
the broad statutory categories of eligible subject matter and the statutory
context that directs primary attention on the patentability criteria of the rest
of the Patent Act.” Research Corp., 627 F.3d at
868.
Such generalities are all very well, but what about the
‘invention’ before us?
Turning to the '545 patent,
the claimed invention is a method for monetizing and distributing copyrighted
products over the Internet. As a method, it satisfies § 100's definition of
“process” and thus falls within a § 101 category of
patent-eligible subject matter. Thus, this court focuses its inquiry on the
abstractness of the subject matter claimed by the '545
patent.
“[I]nventions with specific applications or improvements
to technologies in the marketplace are not likely to be so abstract that they
override the statutory language and framework of the Patent Act.” Research
Corp., 627 F.3d at 869. The '545 patent seeks to remedy problems with prior art
banner advertising, such as declining clickthrough rates, by introducing a
method of product distribution that forces consumers to view and possibly even
interact with advertisements before permitting access to the desired media
product. '545 patent col.2 11.14-18. By its terms, the claimed invention
purports to improve existing technology in the marketplace. By its terms, the
claimed invention invokes computers and applications of computer technology. Of
course, the patentability of the '545 patent, though acknowledged by the U.S.
Patent Office, would still need to withstand challenges that the claimed
invention does not advance technology (novelty), does not advance technology
sufficiently to warrant patent protection (obviousness), or does not
sufficiently enable, describe, and disclose the limits of the invention
(adequate disclosure).
Returning to the subject matter of the '545
patent, the mere idea that advertising can be used as a form of currency is
abstract, just as the vague, unapplied concept of hedging proved
patent-ineligible in Bilski. However, the '545 patent does not simply claim the
age-old idea that advertising can serve as currency. Instead the '545 patent
discloses a practical application of this idea. The '545 patent claims a
particular method for monetizing copyrighted products, consisting of the
following steps: (1) receiving media products from a copyright holder, (2)
selecting an advertisement to be associated with each media product, (3)
providing said media products for sale on an Internet website, (4) restricting
general public access to the media products, (5) offering free access to said
media products on the condition that the consumer view the advertising, (6)
receiving a request from a consumer to view the advertising, (7) facilitating
the display of advertising and any required interaction with the advertising,
(8) allowing the consumer access to the associated media product after such
display and interaction, if any, (9) recording this transaction in an activity
log, and (10) receiving payment from the advertiser. '545 patent col.8 11.5-48.
Many of these steps are likely to require intricate and complex computer
programming. In addition, certain of these steps clearly require specific
application to the Internet and a cyber-market environment. One clear example is
the third step, “providing said media products for sale on an Internet
website.” Id. col.8 11.20-21. And, of course, if the products are offered
for sale on the Internet, they must be “restricted”—step four—by
complex computer programming as well. Viewing the subject matter as a whole, the
invention involves an extensive computer interface. This court does not define
the level of programming complexity required before a computer-implemented
method can be patent-eligible. Nor does this court hold that use of an Internet
website to practice such a method is either necessary or sufficient in every
case to satisfy § 101. This court simply find the claims here to be
patent-eligible, in part because of these factors.
“Many
of these steps are likely to require intricate and complex computer
programming.” Indeed!
And, just in case you did not get the
message, we will repeat it!
Finally, the '545 patent does not
claim a mathematical algorithm, a series of purely mental steps, or any
similarly abstract concept. It claims a particular method for collecting revenue
from the distribution of media products over the Internet. In a recent case,
this court discerned that an invention claimed an “unpatentable mental
process.” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370
(Fed.Cir. 2011). The eligibility exclusion for purely mental steps is
particularly narrow. See Prometheus Labs., 628 F.3d at 1358 (noting that claims
must be considered as a whole and that “the presence of mental steps [in a
claim] does not detract from the patentability of [other] steps”). Unlike
the claims in CyberSource, the claims here require, among other things,
controlled interaction with a consumer via an Internet website, something far
removed from purely mental steps.
In sum, as a practical application of
the general concept of advertising as currency and an improvement to prior art
technology, the claimed invention is not “so manifestly abstract as to
override the statutory language of section 101.” Research Corp., 627 F.3d
at 869. Accordingly, this court reverses the district court's dismissal of
Ultramercial's patent claims for lack of subject matter eligibility and remands
for further proceedings. This decision does not opine at all on the
patentability of the claimed invention under the substantive criteria set forth
in § 102, § 103, and § 112.
REVERSED AND
REMANDED
The remaining defendant in suit, Wildtangent,
appealed to the Supreme Court who GVR'ed (‘grant, vacate, remand’)
for reconsideration in the light of the Supreme Court judgement in
Mayo .
Will the Federal Circuit manage to find some pretext to
avoid affirming the district court, given the precedent and dicta set out in
Mayo? The idea of monetizing advertising over the internet must surely
be, in itself, an abstract idea. If the minimal disclosure in the patent
specification suffices to prove enablement, then surely the showing of
enablement must surely rest on the observation that the computer-implementation
is routine, conventional activity long practised by those skilled in the art.
Thus any veneer of computer-implementation surely cannot supply
patent-eligibility to an otherwise patent-ineligible abstract idea [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 19 2013 @ 03:49 AM EDT |
Every firm with an internal IT department writes
software. Every
firm which maintains its own website writes
software. There are roughly 634,000
firms in the United
States with 20 or more employees and 1.7 million firms with
5 to 19 employees. A very large fraction of these firms
write software. In an
ideal world, all firms should verify
all patents as they are issued to avoid
infringement. This
need to verify the relevance of all patents would
necessarily be a constant, on-going activity. For one thing,
corporate
software must frequently be adapted to new needs
and any new version may
potentially infringe a patent not
previously infringed. A study has concluded
the task is
practically impossible to accomplish.
While this
argument might meet less opposition from skeptics
it is not quite accurate. You
don't need an IT department to
be a potential infringer. Anyone who recorded a
macro in a
wordprocessor or wrote a formula in a spreadsheet is a
potential
infringer.[ Reply to This | # ]
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Authored by: macliam on Tuesday, March 19 2013 @ 08:26 PM EDT |
Geographical and Biological Description of Planet Technology
Planet Technology contains two large landmasses surrounded by ocean.
One
landmass is regarded as a single continent, called Processland.
The
indigeneous lifeforms of Processland are called Statutory
Processes
(though some might also be referred to as Methods or
as Arts).
The other landmass is (like Eurasia/Africa) regarded as
consisting of three
continents, Machineland, Manufactureland
and
Compositionland, whose indigeneous lifeforms are referred
to as
Machines, Manufactures and Compositions
respectively. The
Compositions (more formally known as Compositions
of Matter) resemble
plants in that each is rooted to a single spot.
One can therefore usually
identify a composition by specifying its
location. Many manufactures (e.g.,
plates and lawnmowers)
resemble sloths, in that they move around
their places of habitation
very slowly as they age and die. Machines tend to be
more active.
Indeed some machines, though they may move regularly around their
home
areas, tend to stay put within those areas. However the
indigenous
lifeforms known as computers and cellphones seem to
be
constantly on the move around the adjacent regions of Computerland
and
Cellphoneland. Indeed the computers are probably the most
active
lifeforms on the planet. But printing presses, word
processors,
player pianos, Jacquard looms and some
other ancient lifeforms are
also fairly active. The printing presses
and Jacquard looms are migratory,
spending periods of time at particular
locations, then suddenly moving on to
other locations some distance away.
A machine configuration identifies a
location within Machineland.
The lifecycle of a machine (from manufacture to the
dismantling and
possible recycling of its constituent parts) is representable as
a
trajectory through Machineland.
Some of the lifeforms can participate
in long-distance symbiotic
relationships that induce the spontaneous creation of
entities that one
might describe as composite machines which, for legal
purposes,
are treated as machines on the same basis as their constituent
parts.
In particular, the computer lifeforms can enter into
long-distance
symbiotic relationships with one another and with optical
media,
network cables, modems, dongles,
wireless
antennae, landlines, telephones and
cellphones
to form composite machines such as computer networks
and
client/server systems that are miraculously conjured into
existence
as living entities in parts of Machineland far removed from
the habitations of
the symbiotes.
The shores of the landmasses are washed by three oceans,
the
Ocean of Abstract Ideas, the Ocean of Laws of Nature,
and the
Ocean of Natural Phenomena (also known as the Ocean of
Physical
Phenomena). The Ocean of Natural Phenomena separates
the two
landmasses, and includes the Sea of Products of Nature
washing the shores
of Compositionland. The Ocean of Abstract
Ideas includes the Sea of
Mathematical Ideas, and the Sea
of Business Strategies.
The Ocean
of Abstract Ideas is inhabited by lifeforms belonging to
the order of
abstract ideas. Most of the members of this order
dwell in the open
ocean far from land, but some dwell in the coastal
seas, and some may indeed
swim up rivers discharging into the ocean.
Now the shoreline of
Processland is not well-charted, and
geographers, surveyors and
navigators regularly engage in acrimonious
disputes concerning the size and
general shape of this continent.
Indeed the coastline of Processland is a
bewildering maze of marshes,
swamps, creeks, lagoons, small islands, shoals and
sandbanks, to the
extent that nobody can agree on any well-defined frontier
between the
sea and the dry land. There is an extensive area of wetland between
the
firm ground of Processland and the Ocean of Abstract Ideas, which
is
populated by lifeforms known as business methods. Some people
argue
that these wetlands should be regarded as part of the territory
of Processland.
Others consider that these areas should more properly
be regarded as part of the
surrounding ocean. Moreover zoologists have
been unable to establish the
taxonomic status of the business methods.
Some argue that these lifeforms are
abstract ideas. Others dispute
this, claiming that the business methods should
be classified with the
statutory processes. Others claim that the business
method lifeforms
in fact belong to a plurality of species, arguing that most
appear to be
abstract ideas, though some may in fact be statutory processes. A
similar
dispute concerns another area of wetland inhabited by lifeforms known
as
software processes. Ichthyologists have observed numerous
species
belonging to the genus of mathematical algorithms.
Many members of these
species are to be found swimming far out in
the open ocean. But some are to be
found swimming in the coastal
seas, creeks, lagoons and river estuaries that
form the coastline of
Processland. Some people argue passionately that the
software processes
all belong to the genus of mathematical algorithms. Others
argue that
there are indeed mathematical algorithms dwelling amongst the
software
processes, but that most species of software process are homologous
to
the land-dwelling statutory processes.
Some believe, or at least
suspect, that the entirety of the
flora and fauna of Planet Technology can all
be classified so
that every lifeform falls either within one of the
land-dwelling orders
of statutory process, machine, manufacture and
composition,
or else within one of the ocean-dwelling orders of laws of
nature,
natural phenomena, and abstract ideas. But there is no
general
agreement as to the appropriate classification for the business
methods
and the software processes.
Colonization, Commercial
Exploitation and the Patent System
The Human Race has been
colonizing and exploiting Planet
Technology and, a few centuries ago, set up a
land lease system,
called the Patent System, to promote the objectives
of
colonizing the landmass and exploiting the indigenous
lifeforms.
The
landmasses contain settled areas and wilderness areas.
Any colonist who builds a
homestead out in the wilderness and
starts cultivating or domesticating the
native lifeforms is
entitled to stake a claim to a tract of wilderness
land
surrounding the homestead, and apply for a twenty-year lease
granting a
monopoly over the exploitation of indigenous
lifeforms over that tract of land.
There are rules governing
the allowable claims. The tract of land claimed must
be
contained in the wilderness area and must not encroach on
settled areas.
Moreover no homestead or exploited terrain
belonging to another colonist should
lie within the meets
and bounds determined by the claims at the time that
the
claim is made. Moreover the homestead must lie within
the claimed tract.
Failure to respect these rules results
in invalidation of the claim and the
resultant monopoly.
Those homestead owners with issued claims are known
as
inventors, and the title deeds that specify both
the location of the
homestead and the meets and bounds of
the claim are known as patents. A
portion of
the patent known as the specification must specify
the
location of the homestead with sufficient precision
to enable strangers to
locate the homestead from the
written description (enablement).
Moreover
the boundaries of the claim must be specified,
in relation to local landmarks,
using a numbered sequence of
patent claims so that the boundaries of the
claimed
territory can be determined as accurately as could reasonably
be
expected, given the nature of the terrain.
There is however an oddity in
the property law
that results from these rules. The terrain newly
claimed must
avoid areas already settled and exploited,
but overlap with the wilderness areas
of earlier claims.
When this happens, some tracts of land may fall within
the
meets and bounds of a number of distinct and independent
domains leased by
distinct and independent inventors.
Each of these inventors has an independent
right to
demand tolls (royalties or license fees) or to seek to
eject
trespassers. It follows that the exploitation of
such tracts requires the
active cooperation or indifference
of all the tenants who are leasing the
tract.
Now this patent system seems to have worked in accordance
with
the intentions of the founders of the system in certain
large areas of the
landmasses. In particular, the continent
of Compositionland contains regions
known as Chemicalland
and Alloyland that in their pristine state
were stony
ground difficult to clear. However, once cleared, much of
this land
proved fertile ground for the cultivation of
the plant-like lifeforms such as
chemicals (including
pharmaceuticals) and alloys. There is
a
long history or settlement, and the terrain is well-mapped,
but, in the more
remote areas, there remain areas of virgin
territory available for exploitation.
The situation in
much of Manufactureland is similar: the patent system
encourages
the effective exploitation of lawnmowers,
windscreen
wipers, dog collars and
mousetraps.
However the situation in some regions of Machineland
is
very different. The regions of Computerland and Cellphoneland
are vast
featureless prairies. There are numerous homesteads,
and some are
well-established. But many so-called homesteads
are dilapidated shacks that
were only thrown together to provide
a pretext for staking a claim. Some shacks
have already
collapsed to the point of being invisible beneath the
surrounding
undergrowth. Now each homestead has its associated tract of
leased
land. But the terrain is so featureless and lacking in
landmarks that the meets
and bounds of the domains are difficult
to determine. Some of the domains have
visible boundary fences,
but many do not.
Now the indigenous lifeforms,
namely the computers and
cellphones, are unruly beasts that wander
continually all over
the prairie. Some may group together in herds, but others
break free
and wander here, there and everywhere. In their journeys, these
beasts
trespass on domains leased to thousands of inventors. Indeed it has
been
claimed that some regularly wander over a quarter of a million
distinct
leased domains in a single day. In theory, whenever one of these
beasts
trespasses on a leased domain, the owner of the beast is expected to
pay
a toll to the tenant (or patent owner) to compensate for the trespass.
But,
if it were desirable to create a system to compensate tenants for
trespass with
appropriate license fees, it would be impractical to come
up with a fair system,
given the enormous number of overlapping patents
issued, and the difficulties of
determining the scope of the claims.
Moreover some of the apparent
uninhabited dilapidated shacks are in
fact inhabited by sinister humanoid
creatures known as trolls.
These trolls are capable of assuming the form
of human beings, and will
pose as inventors to obtain leases on ill-mapped
domains within
the prairie, on the pretence of having established homesteads
there.
They then kidnap large numbers of computers and cellphones that stray
near
their shacks, and demand hefty ransoms from the owners of the
impounded
livestock, on the pretext that the beasts have trespassed on
their
domains. But, because the boundaries of their domain are often vague
and
ill-defined, expensive legal proceedings are required to determine
where the
boundaries actually run, and whether or not the livestock has
actually
trespassed on the domain. Thus those seeking to make a living
in Computerland
or Cellphoneland live under constant threat.
Recent
Developments
A case decided a couple of years ago by the Supreme
Court of Planet
Technology appears to have established the principle that the
beaches and
clifftops around the landmasses do in fact lie within the public
domain.
Indeed the Supreme Court established that an area claimed as private
land
in the district of Diagnostictestshire in Medicalprocedureland, on
the
continent of Processland, was in fact a public beach. Future decisions
of
the Supreme Court should help establish the scope of the legal
principles
underlying the recent decision. Does the principle apply
to beaches around all
continents, or only to those around Processland?
A forthcoming court case should
determine which if any parts of a soggy
region known as Nucleicacidland on the
coastline of Compositionland
are legally to be considered part of the Ocean of
Products of Nature.
The results of such cases are eagerly awaited. Indeed the
recent decision
seems to suggest that parts of the disputed swamps where the
software
processes and business methods congregate might in fact be public
land
that cannot be included in any patent claim.
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