You are, of course, entitled to your opinion, even when you are wrong, and you are wrong here. You seemed to gloss over in the fact that the Federal Circut said that in order for a claim to be valid it must be “limited to a visual depiction that represents specific physical objects or substances…”

The law had matured to the point where we no longer had to ignore reality and could acknowledge that software is NOT hardware. Can aspects of software be protected still, yes. Can software be protected now? Absolutely not.

If you know anything about software you know that requiring output to be a visual depiction that represents specific physical objects or substances means that virtually nothing is protectable.

“Moving forward, you can protect software, but only by protecting the machine that the software operates on, which is the way patent attorneys used to be forced to write software patent applications many years ago.”

Page 26 of the Bilski slip states the following:

“Thus, the transformation of that raw data into a particular visual depiction of a physical object on a display was sufficient to render that more narrowly-claimed process patent-eligible.

We further note for clarity that the electronic transformation of the data itself into a visual depiction in Abele was sufficient; the claim was not required to involve any transformation of the underlying physical object that the data represented. We believe this is faithful to the concern the Supreme Court articulated as the basis for the machine-or-transformation test, namely the prevention of pre-emption of fundamental principles. So long as the claimed process is limited to a practical application of a fundamental principle to transform specific data, and the claim is limited to a visual depiction that represents specific physical objects or substances, there is no danger that the scope of the claim would wholly pre-empt all uses of the principle.”

This is clearly NOT a 100% rejection of the software process claim. Telling people who read your posts that now the ONLY way, after the Bilski opinion, to protect your software inventions is through a machine-connected claim is, in fact, inaccurate based on the explicit language of the opinion. And, I HAVE read your prior opinions. In fact, I have typically agreed with many of your positions on software patents. Like you, I consider myself an expert in the software arena, both in the legal world and practice world. I represent and have represented many software companies for years, I’ve coded and developed, and I also agree with you that this Bilski case is a “bad, wrong and stupid” opinion.

I also completely understand that the PTO doesn’t need any help in coming up with their overreaching guidelines to help them artificially reduce their backlog. However, I’d rather them use as support that non-lawyer reporter’s interpretation that Bilski invalidated all method claims, than a publication from a long-time respected member of our bar and supporter of software patents.

Thanks for your opinion, but you are 100% wrong.

Requiring an invention be tied to hardward in order for it to be patented means that only hardware is patentable.

Before you chastise me I suggest you read my other writings on the PLI site that explain this matter in detail for a lawyer audience:

http://www.pli.edu/patentcenter/blog.asp?view=plink&id=370

http://www.pli.edu/patentcenter/blog.asp?view=plink&id=369

Everything I have said here in this post and on the PLI site is 100% accurate and I am confident that my view and opinions will be vindicated in time.

And please, suggesting that I am giving the PTO any ideas. Get real. They have been itching for means to summarily reject patent applications and limit the number of filings. The Federal Circuit handed them a gold platted gift and it is naive to think that they wouldn’t get it had I not written about the matter.