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Authored by: macliam on Tuesday, March 26 2013 @ 03:47 AM EDT |
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Authored by: Ian Al on Tuesday, March 26 2013 @ 04:43 AM EDT |
The courts have declared that computers work in ways that they do not. PolR
explains in Does Programming a Computer Make A New Machine? that the
addition of software to a general purpose computer does not change the machine
and does not improve the function of the machine and is thus not a patentable
invention according to §101.
Mayo says:
Section 101 of the
Patent Act defines patentable subject
matter. It says (excluding
citations):
“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. Diamond v. Diehr, ;
see also Bilski v. Kappos; Diamond
v. Chakrabarty; Le Roy v. Tatham (1853);
O’Reilly v. Morse(1854); cf. Neilson v. Harford, Webster’s
Patent Cases 295, 371
(1841) (English case discussing
same). Thus, the Court has written that “a new
mineral
discovered in the earth or a new plant found in the wild is
not
patentable subject matter.
Likewise, Einstein could not patent his
celebrated law that E=mc2; nor could Newton have patented the law of gravity.
Such discoveries are ‘manifestations of . . . nature, free to all men and
reserved exclusively to none.’ ” Chakrabarty (quoting
Funk Brothers Seed Co. v.
Kalo Inoculant Co.(1948)).
“Phenomena of nature, though just
discovered, mental
processes, and abstract intellectual concepts are not
patentable, as they are the basic tools of scientific and technological work.”
Gottschalk v. Benson (1972). And monopolization of those tools through the grant
of a patent might tend to impede innovation more than it would tend to promote
it.
The Court has recognized, however, that too broad an
interpretation
of this exclusionary principle could eviscerate patent law. For all inventions
at some level embody,
use, reflect, rest upon, or apply laws of nature,
natural
phenomena, or abstract ideas.
Thus, in Diehr the Court pointed
out that “ ‘a process is not unpatentable simply because it contains a law of
nature or a mathematical algorithm.’ ” (quoting Parker v. Flook (1978)). It
added that “an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.” (Diehr). And
it emphasized Justice Stone’s similar observation in Mackay Radio &
Telegraph
Co. v. Radio Corp. of America (1939):
“ ‘While a scientific
truth, or the mathematical ex
pression of it, is not a patentable invention, a
novel
and useful structure created with the aid of
knowledge of scientific truth
may be.’ ” (quoting Mackay Radio).
See also Funk Brothers (“If there is to be
invention from [a discovery of a law of nature], it must come from the
application of the law of nature to a new and useful end”).
Still, as the Court
has also made clear, to transform an
unpatentable law of nature into a
patent-eligible application of such a law, one must do more than simply state
the
law of nature while adding the words “apply it.” See,
e.g.,
Benson.
Forgive the extensive quote. It makes some very
useful points. Take the last sentence. Using the judicial exclusion of 'abstract
ideas' in place of 'laws of nature', continuations can be seen as patenting
abstract ideas and saying anyone who 'applies them' is infringing on the
patented abstract idea.
Please also note that the use of math in
processes is only valid in a patent as part of the whole process and
there must be significant postprocess activity (Bilski, Diehr, Flook). The math
is not protected in any other process. Also, there must be an innovative concept
in the process taken as a whole. From Flook (without references in
citations):Even though a
phenomenon of nature or mathematical
formula may be well known, an inventive application of the principle may be
patented. Conversely, the discovery of such a phenomenon cannot support a patent
unless there is some other inventive concept in its application.
Here
it is absolutely clear that respondent's application contains no claim of
patentable invention. The chemical processes involved in catalytic conversion of
hydrocarbons are well known, as are the practice of monitoring the chemical
process variables, the use of alarm limits to trigger alarms, the notion that
alarm limit values must be recomputed and readjusted, and the use of computers
for "automatic monitoring-alarming."
Respondent's application simply
provides a new and presumably better method for calculating alarm limit values.
If we assume that that method was also known, as we must under the reasoning in
Morse, then respondent's claim is, in effect, comparable to a claim that the
formula 2(pi)r can be usefully applied in determining the circumference of a
wheel.
As the Court of Customs and Patent Appeals has explained, "if a
claim is directed essentially to a method of calculating, using a mathematical
formula, even if the solution is for a specific purpose, the claimed method is
nonstatutory." In re Richman (1977).
The inclusion of math as a
'component' of a machine invention or an improvement to a machine is judicially
excluded by the above quote from Mayo. This is because the addition of math to a
machine does not change the machine. The function of the machine is not
improved. Improving the function of a computer machine by using it in a better
way (e.g. by using another program) is not patentable according to
§101.
The Supreme Court did not explain how they came to the conclusion
that the patented inventions in Benson, Flook and Bilski were abstract ideas.
They refuse to exclude, say, business processes and software as a whole and just
refer to the cornerstone cases as a guide. This suggests that they will not
accept any scientific opinion on abstract ideas to exclude classes of abstract
ideas or to identify the patenting of abstract ideas.
In Bilski they
said:It is important to emphasize that the Court today is not
commenting on the patentability of any particular invention, let alone holding
that any of the above-mentioned technologies from the Information Age should or
should not receive patent protection.
This Age puts the possibility of
innovation in the hands of more people and raises new difficulties for the
patent law. With ever more people trying to innovate and thus seeking patent
protections for their inventions, the patent law faces a great challenge in
striking the balance between protecting inventors and not granting monopolies
over procedures that others would discover by independent, creative application
of general principles. Nothing in this opinion should be read to take a position
on where that balance ought to be struck.
Since PolR has shown
that computers only work to manipulate symbols by executing software algorithms
(i.e. a process) then the social science of semiotics shows that the result of
that manipulation only has meaning to people as an interpretant. Diehr, Flook
and Benson tell us that a process must have significant postprocess activity
(i.e. a change in a referent such as the production of precision rubber
components) to meet §101. In other words, a process or method must produce a
referent to be patentable. As a machine, a computer with a program only produces
manipulated symbols which can be presented on a display. That display is how
human beings perceive the interpretants. Putting ideas in peoples' minds is
non-statutory subject matter (See, Flook, above).
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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- tl;dr - Authored by: Anonymous on Tuesday, March 26 2013 @ 09:11 AM EDT
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Authored by: macliam on Tuesday, March 26 2013 @ 01:58 PM EDT |
The Supreme Court cabined Diehr very neatly in Mayo:
The
Court pointed out that the basic mathematical equation, like a law of nature,
was not patentable. But it found the overall process patent eligible because of
the way the additional steps of the process integrated the equation into the
process as a whole. Those steps included “installing rubber in a press,
closing the mold, constantly determining the temperature of the mold, constantly
recalculating the appropriate cure time through the use of the formula and a
digital computer, and automatically opening the press at the proper time.“
Id., at 187, 101 S.Ct. 1048. It nowhere suggested that all these steps, or at
least the combination of those steps, were in context obvious, already in use,
or purely conventional. And so the patentees did not “seek to pre-empt the
use of [the] equation,” but sought “only to foreclose from others
the use of that equation in conjunction with all of the other steps in their
claimed process.” Ibid. These other steps apparently added to the formula
something that in terms of patent law's objectives had significance—they
transformed the process into an inventive application of the
formula.
The subtext seems to be that Justice Breyer doesn't
really think that constantly monitoring the temperature and opening the press in
Diehr really added enough, but it was apparently good enough for the
majority in Diehr, and that is all that matters.
Justice Breyer
is careful not to ‘dissect the claim’: “And they insist that a
process that focuses upon the use of a natural law also contain other elements
or a combination of elements, sometimes referred to as an
‘inventive concept,’ sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the natural law
itself.” (emphasis added). So the proscription against ‘claim
dissection’ in Diehr is still good law.
But there was quite a bit
of obiter dicta in Diehr on pages 189 to 191, which Justice
Rehnquist was parroting from Judge Rich, establishing the Three Doors
doctrine in Supreme Court jurisprudence. Did Justice Breyer mention or analyse
this argument in Mayo? Did any justice write separately to discuss these
dicta in Diehr, either to support them or to refute them? Well, much
further on in Mayo:
Third, 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, 561 U.S.
___, 130 S.Ct. 3218, 177 L.Ed.2d 792; Diehr, supra; Flook, supra; Benson, 409
U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273. See also H.R.Rep. No. 1923, 82d Cong., 2d
Sess., 6 (1952) (‘A person may have 'invented' a machine or a manufacture,
which may include anything 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)).
Justice Breyer even had
the chutzpah to list Diehr itself in his list of cases!
Thus all
those dicta in Diehr about § 101 being purely about whether the
claim recited eligible subject-matter were effectively overruled sub
silentio! Judge Rich must have been spinning in his grave!
So, now
that the Supreme Court in Mayo have framed Diehr as a case where
the industrial process added enough, why is Groklaw, instead of
taking a hint from the Supreme Court and letting sleeping dogs lie, putting
forth a massive discursive diffuse discussion document, full of theory of
computation, semiotics and metaphysics, whose only concluding legal argument is
to observe that, under Groklaw's proposed text, the invention in
Diehr was patent-eligible because the claim cited a
referent?
It seems to me that the Supreme Court has moved on from
the old metaphysical ‘a programmed computer is a particular machine and
thus patent-eligible!’ / ‘software is math and therefore
patent-ineligible’ argument that has been aired repeated before, without
apparently inducing anyone to change their mind, and I really think that
Groklaw would do better to take the hint and move on also. (But of
course, Groklaw is PJ's blog, so it is up to her where she takes
it.)
How I think, or at least hope, that the Supreme Court will frame
the argument, when they finally get a computer-related case properly before
them, is as follows: ‘Abstract ideas, abstract intellectual concepts, and
methods that can in principle be performed purely in the mind or with pencil and
paper are not patentable. In the 21st century, merely implementing such a
process on a computer is not enough to confer patentability.’ And
if they do this, all those old arguments about the patentability of mathematical
algorithms will lose all their relevance.
(And the Supreme Court GVR'ed
Wildtangent v. Ultramercial for reconsideration by the Federal Circuit in
the light of Mayo, so they certainly recognize the connection between
obvious applications of laws of nature and obvious applications of abstract
ideas.) [ Reply to This | Parent | # ]
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Authored by: Imaginos1892 on Tuesday, March 26 2013 @ 05:31 PM EDT |
Of course the computer is a machine.
But it can never be "programmed in a way that adds functionality
to the computer". A computer is a machine for running programs,
and is inherently capable of running any program within the limits
of its capacity. Any program is simply data, or media presented
to the computer in the correct format. It is not a "process, machine,
manufacture, or composition of matter"; it is a DESCRIPTION or
DEFINITION of a process expressed as a sequence of simple digital
logic operations in a form suitable to be performed by the computer
but which can be performed by any agent capable of accurately
evaluating the operations. No program can alter the computer in
any way.
Would you claim that a movie projector is "transformed into a new
machine" by putting film into it? A different, separately patentable
machine for each film? That would be no more absurd than what
you are trying to claim for the computer and a program.
Yes, the computer is a finite state machine, but within its limits
it is a useful approximation of an infinite state machine and
operates by exactly the same principles. You are either trying
to confuse the issue, or are yourself confused.
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Simple answers to complex questions are always wrong.[ Reply to This | Parent | # ]
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