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Authored by: Anonymous on Wednesday, May 29 2013 @ 09:24 AM EDT |
Also, apparently if you select HTML in an effort to use bolding, you lose all
carriage returns...sorry about that too.[ Reply to This | Parent | # ]
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Authored by: Ian Al on Wednesday, May 29 2013 @ 12:52 PM EDT |
First, a quick tip; use all the available tags when employing html including
<br> and <p> for new paragraphs.
You
replied:It is the exercise of the method to obtain
significant post process activity (See, Diehr) that is protected by the patent.
Other uses of the known machine (See, §100) are not covered by the patent and
neither is the machine, itself. We agree on this point. I'm not
sure why you made this comment.
The reason why I made this point
is that you conflate the method with the machine used by the method. We both
agree that using a computer does not infringe on the Diehr patent. It is the
method that is protected. Where we diverge is that running software on a
computer is not a method. Neither is it a machine. Fonar explains where this
confusion comes from.
As a general rule, where software constitutes
part of a best mode of carrying out an invention, description of such a best
mode is satisfied by a disclosure of the functions of the software. This is
because, normally, writing code for such software is within the skill of the
art, not requiring undue experimentation, once its functions have been
disclosed.
It is well established that what is within the skill of the
art need not be disclosed to satisfy the best mode requirement as long as that
mode is described. Stating the functions of the best mode software satisfies
that description test. We have so held previously and we so hold
today.
Fonar says that, where writing the software is easy, just
recite the functions in the invention and leave the implementation of the
process by writing software and running it on a computer to the software
draughtsman.
You replied:However, the process that is
implemented by the software is a process and is therefore well within one of the
four patent-eligible categories of §101.
The patents that say
implement these invented functions by means of software on a computer do not
give the specificity of implementation for the reasons outlined in Fonar: the
writing of the software is just the draftsmans art. Since the writing of the
software and running it on a computer are not detailed, they are not the
invented method. What is left must pass the test of §101.
You might say
that relying on the draughtsmans' art should ring warning bells! From
Flook:The Court then asked whether, to confer patent eligibility,
the claim contained sufficient substance beyond the abstract mathematical
formula itself—that is, “some other inventive concept in its application.” (“A
competent draftsman could attach some form of post-solution activity to almost
any mathematical formula . . . .”).
Concluding that the field-of-use,
monitoring, adjusting, and computer limitations were trivial or “well known”
under such an analysis, the Court held that the claims were not patent eligible:
“[I]f 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.”.
You will notice that the patent
extracts you gave are an ideal case in point. The patents all recite applying a
math algorithm like Fast Fourier Transforms to a set of data saved in a computer
file. Any computation is, by definition, mathematics especially when it is the
conversion of a set of data from one math format to another. Mathematics are one
of the judicial exclusions. The patents say nothing about how the
draftsman-software writer makes the computer do the method. The software on a
computer is the known machine with which the functional method is carried out.
35 USC § 100 - Definitions(b) The term “process” means
process, art or method, and includes a new use of a known process, machine,
manufacture, composition of matter, or material.
The patent
applications are inventions about applying math algorithms to data tables. The
inventors make it clear that the software and the computer is not what they have
invented. They are just the means that one skilled in the art of writing
software would use to make a computer do the math. From Mayo:
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). 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 pro
tection.” (Diehr). And it emphasized Justice
Stone’s similar
observation in Mackay Radio & Telegraph
Co. v. Radio Corp.: “ ‘While a
scientific truth, or the mathematical expression of it, is not a patentable
invention, a novel and useful structure created with the aid of
knowledge of
scientific truth may be.’.
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.”
To repeat
Flook:“[I]f 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.” That is what your quoted patents are; claims
directed essentially to a method of calculating using a mathematical algorithm
even though the solution is for a specific purpose. When the invented process is
complete, all you have left is the same mathematical content expressed in a
different form. That is an abstract concept. They have not included the software
that executes the math as their inventive concepts. As is also explained by
Flook, they also fail to provide significant post process activity and are
invalid for that reason, as well. The inventions do not use the transformed data
for post solution activity.
The point we have made on Groklaw over the
past few years is that lots of these ineligible inventions have been awarded
patents by the USPTO. The problem has got to such a pitch that the USPTO has
requested proposals to overcome the damage that such functional patents are
doing.
blockquote--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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