At June 5, 5:11am you write:

“Like your words, software patents, too, are completely obtuse and 100% useless to any of us who write code. I’ve read them. They’re written by lawyers for judges.”

Now even your worshiped meta-math.org site would interpret the word “any” as used above to mean: for ALL members of the set (persons who write code).

This may come as an utter surprise to your world view, but there are real-world overlaps of the sets (persons who write code) and (lawyers) and (persons who have a hand in writing software patents).

How could this be? You ask.

Well, sometimes, people who used to write code (or otherwise design algorithms that are to be machine-implemented) go to law school and become patent attorneys. That’s one example that falsifies your hypothesis about “any”.

Sometimes, people who write code (or otherwise design algorithms that are to be machine-implemented) have an idea that they regard to be novel (new to the world), nonobvious (to artisans of ordinary skill) and useful (in the sense of being part of the useful arts as opposed to being entirely within the purely entertaining arts). These people sometimes go to a patent attorney (or agent) and have a hand in preparing the “software” patents that you deride as being “completely obtuse and 100% useless to any of us”. That’s another example that falsifies your hypothesis about “any”.

Your worshiped meta-math.org site would probably conclude that the above is a complete disproof of your hypothesis. But then again, cognitive dissonance may block you from seeing it as such.

Don’t get me wrong. I understand how you “feel” and can empathize with those feelings. However, those feelings probably come out of a limited appreciation of the world as it is. Writing code is not the all and everything.

You can keep your “(T)hanks”. I don’t want them. Don’t bother keeping up the blogging. Dennis does it better.

Thanks for your comment. I think you have proven which one of us is “ridiculous.”

If you cannot understand why large companies who have dominant status and a monopoly would want to keep the status quo there is nothing I can say to explain that to you.

-Gene

Get a grip man. European patentable subject matter law is anything but seamless. It is a mess, cannot be followed, is made up as it goes along and provides no certainty. By any measures of what it takes to have a stable and just legal system the European view of patentable subject matter is unfair, arbitrary and purely ridiculous.

What the Supreme Court should do is recognize that Judge Rich was correct and State Street was the only just outcome under US law.

-Gene

It is hard to take anything you say seriously when you continue to perpetuate the myth that software is math. No matter how many times you say it, no matter how many times other say it, it will NEVER be true.

It is curious that you say source code is the best mode, and source code is language. Source code is entitled to first amendment protection because it is expressive. So your own argument proves that software is not math, but you don’t even see that.

-Gene

What they will replace it with, heaven knows. As you say, it’s not going to be a bright line, is it?

I like the EPO line on 101 because it evolves seamlessly, owing nothing to common law Binding Precedent, and adjusting painlessly to new technology, as it arrives, even while that new technology remains gobbledegook to members of any Supreme Court, anywhere in the world.

That’s where we are now, isn’t it: two legal worlds with nary a chance of harmonisation.

Have a look at the 90 or so Amicus Briefs on EPO G3/08, from the likes of AIPLA, MS, IBM, Apple, Pitney-Bowes, Accenture and SAP. Show me any of them that says the present EPO line on 101 is wrong or not clear.

Now consider the EPO line on 103. It is unassailable. That’s because it has been 25 years in the making, by 24 equal rank Technical (that word again) Boards of Appeal, all at first disagreeing with each other but then, as a result of handling thousands of oppositions (between, say, Procter & Gamble on one side and Kimberley-Clark on the other, patent owner and opponent) reaching consensus. That same consensus has now arrived, with “technical” on 101, and it is by now also unassailable. As technology evolves, so will the consensus view within the Appeals Directorate of the EPO, what is “technical”. And no national court has any control whatsoever over any of those TBA decisions to revoke. Ever heard of a phenomenon called “creep”?

England (common law) looks on in horror, from its offshore location, but can’t do anything to stop the burgeoning mainland consensus.

I can’t imagine what SCOTUS will write. With Binding Precedent, and non-specialist judges in the supreme instance, it’s a nightmare. No wonder they are all scared to define a bright line. So they should be.

Another item to consider, if you do not mind.

Gene (and others) have pointed out that the US system is purposefully extrordinarily broad. The “any” in our 35 US 101 has been interpreted as “anything under the sun made by man”, and we provide full sections in our law discussing business methods (which arguably open the door beyond the EP technological effects). Even Bilski, although limiting items to the two prong test also clearly states that there are NO categorical exclusions. We have already been down the path of the “useful arts is limited to technology” – that path is a dead end. It has been put quite emphatically that a “technological arts” limitation to subject matter IS unconstitutional.

Would it appear to you that the US path and the EP path diverge on this critical basis and cannot be rejoined except perhaps for the EP to follow the US? As our courts (especially the Supreme Court) dislike brightline tests (due in large part to the extreme broadness that US patents are meant to cover), do you think that SCOTUS will remove the Bilski Test, which is, in large view, a 19th century mechanistic limitation on “anything under the sun made by man”? A clue (the clue?) may lay in Newman’s dissent in Bilski. I believe the Supreme Court will follow Newman’s thoughts on this and remove the brightline test. I also believe that they will NOT provide a replacement brightline test.

Given the above as a premise, how would you as a non-US observer view the distinct paths?