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One of the horrid things about law is how it can be dissembled by those whose job is to practice it. This drives people crazy. They know something is real. Yet,

by grellas 12y ago

One of the horrid things about law is how it can be dissembled by those whose job is to practice it. This drives people crazy. They know something is real. Yet, especially if they are caught in its hooks, they watch how law can be applied such that results are absurdly divorced from the reality they know. Our advocacy process has many fine elements and yet this is one of its tragic by-products: having the best and the brightest in the field become instruments in trying to obtain cynically-motivated decisions that further some narrow (usually economic) interest at the expense of truth and justice. That has been happening for a long time now in the patent field as armies of very bright lawyers have found clever ways to concoct patents out of what really should be unpatentable ideas through the art of clever drafting. Well, this decision gives top-down guidance to judges to cut through such dissimulation in the area of patents and to look at the reality by asking, in effect, "is this really inventive or is it simply a product of the draftsman's craft parading as being somehow inventive." That is the right question to ask in such cases and it should go a long way towards reining in some of the more absurd abuses of recent times. The case in nonetheless only an incremental step building on solid precedent (as well-assessed by rayiner) and not a radical shift by the Court. Many had hoped, for example, that this case could be used as a means of delivering a death-blow to all software patents on the grounds that they could all be labeled nothing more than basic mathematical algorithms that happen to apply to a computer. Yet, in its decision, the Court not only did not address this sort of argument but it also carefully emphasized the idea that it was to "tread carefully" in how it might choose to exclude even fundamental "building blocks of human ingenuity" (i.e., laws of nature, natural phenomena, abstract ideas) from patent eligibility "lest this exclusionary principle . . . swallow up all of patent law." To me, this signifies that the cautious approach signaled in Bilski - that is, that of gradually cutting back on the excesses spawned in the past two decades in the area of patent-eligible subject matter - will continue. So don't hold your breath awaiting any court-driven abolition of software patents generally. That will have to await a legislative solution, if it is to come about at all.

DannyBee 12y ago
Well, actually, it does help a lot. In particular, they said ""claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention"" Historically, federal circuit precedent said exactly the opposite - that when a generic computer was programmed for a specific purpose, it was now a special purpose machine and patentable. "For computer implemented processes, the “machine” is often disclosed as a general purpose computer. In these cases, the general purpose computer may be sufficiently “particular” when programmed to perform the process steps. Such programming creates a new machine because a general purpose computer, in effect, becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software." This decision should, if the federal circuit actually follows it, knock out a large set of software patents.
- throwawaykf05 12y ago
  >Well, actually, it does help a lot. In particular, they said ""claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention"" Historically, federal circuit precedent said exactly the opposite - that when a generic computer was programmed for a specific purpose, it was now a special purpose machine and patentable. 1) Your argument does not refute the GP's statement. A "specific purpose" is not necessarily an "abstract idea", depending on how the claims are structured. A claim saying "presenting ads in such a way that it is unobtrusive on a computer" is an abstract idea[1]. A claim that specifies how a computer can, say, examine visual or DOM elements on a page to determine where to place ads such as not to be obtrusive, is much more concrete. 2) A generic computer running a program is a special purpose machine: it's now doing things it could not do before it was programmed to do so, and as such, it is performing potentially novel functionality. Otherwise, in my mind, you might as well argue "a kitchen knife could not be a murder weapon because it's a kitchen knife." > This decision should, if the federal circuit actually follows it, knock out a large set of software patents. I've looked only at a few particular areas, but all the "old idea, only on a computer / on the Internet" patents I've seen so far (like [1]) the one should have expired by now. However this is purely anecdotal, of course. 1. Such a claim (I only paraphrased it a bit) exists, and was referenced in one of Lemley's papers. On mobile so can't find it right away.
  - DannyBee 12y ago
    "2)a generic computer running a program is a special purpose machine: it's now doing things it could not do before it was programmed to do so" This is of course false. It always could do them, it just wasn't told to. To view it otherwise is nuts. Otherwise, I could argue that when you think about things, you are activating new pathways in your brain, forming neural connections that didn't exist, and otherwise changing and programming the state of your brain to know and do things it could not before.
    - throwawaykf05 12y ago
      > It always could do them, it just wasn't told to. "A board, spring and wires could always trap a mouse, they just weren't configured to do so." How is programming a computer different from assembling existing components in a new arrangement to make a new machine? > otherwise changing and programming the state of your brain to know and do things it could not before. Not a neuroscientist, and this risks derailing the thread, but isn't that exactly how brains and learning work? This has also been observed at the macro level, e.g. that study where London cabbies' brains were found to have enlarged portions that dealt with spatial processing.
rayiner 12y ago
> One of the horrid things about law is how it can be dissembled by those whose job is to practice it. This drives people crazy. They know something is real. Yet, especially if they are caught in its hooks, they watch how law can be applied such that results are absurdly divorced from the reality they know. I think this is maybe overly harsh. The plaintiffs in CLS v. Alice weren't trying to obtain a result "divorced" from reality. Their argument was simply that 101 is written broadly and should be interpreted broadly (i.e. judicially created exceptions should be interpreted narrowly). There's no truth--just a statute of Congress that is amenable to differing interpretations. Some of those interpretations are favorable to some people, and others to other people. Who knows what Congress really intended. Indeed, there's 535 differing sets of intentions...
the_watcher 12y ago
>> the Court not only did not address this sort of argument but it also carefully emphasized the idea that it was to "tread carefully" I'm very much against the software patent industry, but in general, judicial restraint is usually more good than bad. Sweeping redefinitions of law by the Supreme Court that go beyond the primary issue at hand in the case more often than not have very problematic unintended consequences. While it would be great to kill the software patent industry overnight, that kind of change is better left to the legislature, while courts deal with challenges to specific claims of patent trolls. It's a slow process, but it's much tougher to roll back a Supreme Court decision with unintended consequences than legislation.
noonespecial 12y ago
>"...cut through such dissimulation in the area of patents and to look at the reality by asking, in effect, "is this really inventive or is it simply a product of the draftsman's craft parading as being somehow inventive." If only we could create an office that could somehow, you know, examine the patent before granting it and do just this. These so called "examiners" could then prevent it from going all the way through a court to a judge before we decide if it was a good idea to grant the patent in the first place.

by grellas 12y ago

DannyBee 12y ago

Well, actually, it does help a lot. In particular, they said ""claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention"" Historically, federal circuit precedent said exactly the opposite - that when a generic computer was programmed for a specific purpose, it was now a special purpose machine and patentable. "For computer implemented processes, the “machine” is often disclosed as a general purpose computer. In these cases, the general purpose computer may be sufficiently “particular” when programmed to perform the process steps. Such programming creates a new machine because a general purpose computer, in effect, becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software." This decision should, if the federal circuit actually follows it, knock out a large set of software patents.

throwawaykf05 12y ago
>Well, actually, it does help a lot. In particular, they said ""claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention"" Historically, federal circuit precedent said exactly the opposite - that when a generic computer was programmed for a specific purpose, it was now a special purpose machine and patentable. 1) Your argument does not refute the GP's statement. A "specific purpose" is not necessarily an "abstract idea", depending on how the claims are structured. A claim saying "presenting ads in such a way that it is unobtrusive on a computer" is an abstract idea[1]. A claim that specifies how a computer can, say, examine visual or DOM elements on a page to determine where to place ads such as not to be obtrusive, is much more concrete. 2) A generic computer running a program is a special purpose machine: it's now doing things it could not do before it was programmed to do so, and as such, it is performing potentially novel functionality. Otherwise, in my mind, you might as well argue "a kitchen knife could not be a murder weapon because it's a kitchen knife." > This decision should, if the federal circuit actually follows it, knock out a large set of software patents. I've looked only at a few particular areas, but all the "old idea, only on a computer / on the Internet" patents I've seen so far (like [1]) the one should have expired by now. However this is purely anecdotal, of course. 1. Such a claim (I only paraphrased it a bit) exists, and was referenced in one of Lemley's papers. On mobile so can't find it right away.
- DannyBee 12y ago
  "2)a generic computer running a program is a special purpose machine: it's now doing things it could not do before it was programmed to do so" This is of course false. It always could do them, it just wasn't told to. To view it otherwise is nuts. Otherwise, I could argue that when you think about things, you are activating new pathways in your brain, forming neural connections that didn't exist, and otherwise changing and programming the state of your brain to know and do things it could not before.
  - throwawaykf05 12y ago
    > It always could do them, it just wasn't told to. "A board, spring and wires could always trap a mouse, they just weren't configured to do so." How is programming a computer different from assembling existing components in a new arrangement to make a new machine? > otherwise changing and programming the state of your brain to know and do things it could not before. Not a neuroscientist, and this risks derailing the thread, but isn't that exactly how brains and learning work? This has also been observed at the macro level, e.g. that study where London cabbies' brains were found to have enlarged portions that dealt with spatial processing.

rayiner 12y ago

> One of the horrid things about law is how it can be dissembled by those whose job is to practice it. This drives people crazy. They know something is real. Yet, especially if they are caught in its hooks, they watch how law can be applied such that results are absurdly divorced from the reality they know. I think this is maybe overly harsh. The plaintiffs in CLS v. Alice weren't trying to obtain a result "divorced" from reality. Their argument was simply that 101 is written broadly and should be interpreted broadly (i.e. judicially created exceptions should be interpreted narrowly). There's no truth--just a statute of Congress that is amenable to differing interpretations. Some of those interpretations are favorable to some people, and others to other people. Who knows what Congress really intended. Indeed, there's 535 differing sets of intentions...

the_watcher 12y ago

>> the Court not only did not address this sort of argument but it also carefully emphasized the idea that it was to "tread carefully" I'm very much against the software patent industry, but in general, judicial restraint is usually more good than bad. Sweeping redefinitions of law by the Supreme Court that go beyond the primary issue at hand in the case more often than not have very problematic unintended consequences. While it would be great to kill the software patent industry overnight, that kind of change is better left to the legislature, while courts deal with challenges to specific claims of patent trolls. It's a slow process, but it's much tougher to roll back a Supreme Court decision with unintended consequences than legislation.

noonespecial 12y ago

>"...cut through such dissimulation in the area of patents and to look at the reality by asking, in effect, "is this really inventive or is it simply a product of the draftsman's craft parading as being somehow inventive." If only we could create an office that could somehow, you know, examine the patent before granting it and do just this. These so called "examiners" could then prevent it from going all the way through a court to a judge before we decide if it was a good idea to grant the patent in the first place.