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Authored by: Anonymous on Thursday, June 13 2013 @ 04:41 PM EDT |
Everything below is commentary on Benson, which Groklawians love so much. I
past it for the last 2 sentences which are from the ruling itself. The last
sentence being the one I was referring to in my early post. "We do not so
hold."
Here's a link to the commentary, I don't have one for Benson itself:
http://digital-law-online.info/lpdi1.0/treatise61.html
I.B. The Supreme Court’s Benson Decision
The Supreme Court has gone through phases where it is hostile to patents,
viewing them as a monopoly that should not be extended any more than necessary.
In 1949, Justice Jackson wrote that “the only patent that is valid is one which
this Court has not been able to get its hands on.” {FN9: Jungersen v. Ostby, 335
U.S. 560, 572, 80 USPQ 32, 36 (1949)} Justice Douglas, who wrote the opinion in
Gottschalk, Commissioner of Patents v. Benson, {FN10: 409 U.S. 63, 175 USPQ 673
(1972)} was certainly not an advocate of expanding the scope of patents. In a
unanimous decision (with three justices not taking part in the decision,
presumably because of conflicts of interest), the Court reversed the decision of
the CCPA.
Citing past Supreme Court decisions, the opinion states “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.” That statement followed the long-standing rule that an idea of itself
is not patentable.
Here the “process” claim is so abstract and sweeping as to cover both known
and unknown uses of the BCD to pure-binary conversion. The end use may (1) vary
from the operation of a train to verification of drivers’ licenses to
researching the law books for precedents and (2) be performed through any
existing machinery or future-devised machinery or without any apparatus. {FN11:
409 U.S. at 68, 175 USPQ at 673}
This is a strange argument. Because the claimed technique for converting from
BCD to binary has great utility, in that it can be used in a wide variety of
applications, it isn’t entitled to patent protection! Many things have a variety
of uses – a novel fastener can be used to hold together parts of airplanes,
furniture, or even broken human bones, but it is still a patentable
manufacture.
Justice Douglas then revisited Cochrane v. Deener, {FN12: 94 U.S. 780 (1876)} an
1876 Supreme Court patent decision, for its definition of a process as something
that transforms its subject matter to a different state or thing, which he notes
as a “clue to the patentability of a process claim that does not include
particular machines.” But then he states:
It is argued that a process patent must either be tied to a particular
machine or apparatus or must operate to change articles or materials to a
“different state or thing.”
We do not hold that no process patent could ever qualify if it did not meet
the requirements of our prior precedents. It is said that the decision precludes
a patent for any program servicing a computer. We do not so hold. {FN13: 409
U.S. at 71, 175 USPQ at 676} [ Reply to This | Parent | # ]
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Authored by: Wol on Saturday, June 15 2013 @ 06:37 AM EDT |
"Absence of evidence is not evidence of absence" situation.
The Supremes have said "simply implementing a mathematical principle on a
physical machine, namely a computer, was not a patentable application of that
principle".
They have also said that software MAY be patentable.
Now we, as software professionals, know that ALL software is simply
"implementing a mathematical principle on a physical machine". This is
perfectly compatible with the Supreme's judgement that software may be
patentable.
It's just that we know that the set of software that is patentable is the null
set! All we need to do now is get a case to the Supremes where they recognise
that fact.
Cheers,
Wol[ Reply to This | Parent | # ]
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- This is an - Authored by: PolR on Saturday, June 15 2013 @ 11:59 AM EDT
- This is an - Authored by: Wol on Saturday, June 15 2013 @ 12:15 PM EDT
- This is an - Authored by: PolR on Saturday, June 15 2013 @ 01:30 PM EDT
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