Hold on there friend.
Last 100 years?
Seriously?

What about Chakarbarty (everything made by man under the sun)?
What about Diamond v. Diehr?

I think that somewhere under those thick “gobbledygook” skulls, some of the SCt. Justices must have at least a hunch or an inkling that much of the prosperity of the USA in the last 100 years was due to inventors like Edison. Bell, the Wright Brothers, etc. and their ability to patent their new fangled inventions.

I am not sure you are right. The Supremes may have drunk the cool aid that patents are inhibiting innovation (invention). The history of the Supreme Ct. in the last 100 years is almost all on the side that thinks patents are evil.

The Justices on the US Supreme Court are not totally ignorant. They fully understand that software is a big business and it is responsible for a significant portion of the USA GDP. So they are not going to out and out kill all software patents.

On the other hand they may become reckless in how they handle the Bilski hedge method question and they may create new law that has unintended consequences.

One of the last big patent cases the SCt managed to mangle was KSR v. Teleflex. The unintended consequences there is that it has made patent prosecution far more expensive than it used to be. The ones who bite the bullet thanks to KSR are the small solo inventors who cannot afford long legalistic battles with the US Patent Office over what constitutes “ordinary creativity” and “common sense”. Let’s hope Bilski does not head in the same direction.

As for patent “validity”, that is a different question than “patent eligible subject matter”. You meant the latter even though you may not have known it. Happy Holidays.

As a CEO of a technology start up you have given me great confidence that our software patents will be valid.

Thank you.

SCOTUS technologically-challenged may seem a danger to a “right decision”, but technology is made of vast areas of knowledge, those areas together too vast to make and apply a single standard on. The standard I’m talking about is (“technology”), to apply it, as to what is patentable, based on every area of technology in turn, as a given area applies held as “truth” or “fact” at the time in a Court by the technology holder, with every Court + Judge with the same knowledge level in the given “technology” ?. In my opinion, not only would such a system be poor, but open to control from outside sources of “technology”, being that change is ongoing !.

step back “Justice Sotomayor is not an expert in information/ data/ knowledge theories. So I think she misspoke by using the word “information” rather than “ideas”. A book contains “information”. Copyright laws are clearly intended to prevent the “free” flow of book content “information” without compensating the author or getting his/her permission. What she meant was “ideas”. Bilski’s Claim 1 does not and cannot prevent the free flow of ideas about what the counterpart risks are for commodity buyers and sellers.”

will be an interesting outcome but not so sure we will get a bright line without a real understanding of information theory as per step back. while EG is right that allapat and state street should guide, even the mpep at 2106.01 versus 2106.02 is a bit tricky to understand for examiners, lawyers & inventors alike … there is a group in 2400 which does assist on interpreting 101 (outside of your spe you can check with them for guidance), but i have found that people just can’t express an objective enough standard.

and, as i’ve said time and again, every patent (well, that has monetary value) is a claim to a business method. my patented process that can only be performed on your capital intensive equipment still remains my patented process (& maybe i just don;t want to own or invest in equipment but still want that patent!).

This reinforces my view that claims should be judged first under 35 USC 112 before applying 35 USC 101. That 35 USC 101 comes before 35 USC 112 in the statutes shouldn’t change tihs. Until you understand what the claims mean, and whether the scope of those claims are enabled under 35 USC 112, determining whether the claimed invention is “useful” under 35 USC 101 is an exercise in futility.

I also remain convinced that the “useful, concrete, and tangible result” standard should be reinstated for determining whether 35 USC 101 is satisfied. It is the only objective standard I’ve seen for applying 35 USC 101. How to apply this standard to root out claims to “disembodied” abstract ideas is articulated well by Alappat and State Street. Again, 35 USC 112 should be the initial screen, not 35 USC 101.

It is not right to make fun of technical people because they didn’t go to law school.
No human being knows everything.
There is a great deal of technical stuff that we legal eagles are completely ignorant of.

That said, it is well established law that pure “ideas” cannot be blocked by either copyright law or patent law.

Indeed, in copyright law there is a doctrine called the idea/expression dichotomy doctrine. When idea and its expression so merge that it is impossible to provide them separately, the expression cannot be copyrighted.

I’ll give you a simple example. Consider the expression: “buy low, sell high”. That is pretty much the most efficient method of conveying the underlying idea that economic profit is made by buying goods at a low price and reselling them at a higher price. Awarding a copyright to the compact expression, “buy low, sell high” would impede the free flow of the underlying “idea”. The idea/expression dichotomy doctrine therfore comes into play with such an expression.

Justice Sotomayor is not an expert in information/ data/ knowledge theories. So I think she misspoke by using the word “information” rather than “ideas”. A book contains “information”. Copyright laws are clearly intended to prevent the “free” flow of book content “information” without compensating the author or getting his/her permission. What she meant was “ideas”. Bilski’s Claim 1 does not and cannot prevent the free flow of ideas about what the counterpart risks are for commodity buyers and sellers.

I’m reading back the claim in the application (see http://www.patentlyo.com/patent/2008/02/bilski-full-caf.html)

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:

(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;

(b) identifying market participants for said commodity having a counter-risk position to said consumers; and

(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

I mean there’s no computer and there’s no software here. Or rather the computer and software are not part of the claim. So how did we get into software patent again?

It typically helps when people pick up a dictionary and actually learn what words really mean. I can drive down to the nearest Best Buy, go to a shelf, and buy me a piece of software. After I load it on my computer, I can run it. However, if I take out my hard drive and replace the hard drive with one that doesn’t have the softed on it, the software won’t run. To be “abstract” is to be “existing only in the mind; separated from embodiment.”

By definition, a copyright applies to any **expressible form** of an idea or information that is substantive and discrete and fixed in a medium.

There is a reason why many of us make fun of the anti-patent/copyright crowd. You know little about the law, and your misconceptions are so bad that it becomes comical.

Software patents in particular should not exist. No other form of abstract idea falls under both patent and copyright law for a good reason. The appropriate solution is to eliminate the abomination that are software patents and go back to the appropriate legal coverage provided by copyrights.

However, I doubt many reading this blog will agree with me.

Dale,

Absolutely correct and on point. SCOTUS is technologically-challenged to the nth degree. What’s worse is they’re too arrogrant to admit it or get help to make them less clueless.

Gottschalk v. Benson was the first indicator of how much computer technology is over the heads of SCOTUS. The more recent case of Microsoft v. AT&T is a real “giggle” where the majority analogized how software works to an architectural blueprint. Dissenting Justice Stevens did much better by analogizing software to how a piano roll works in a player piano (much like the Jacquard loom that was the predecessor to the IBM punch card).

My fellow patent attorney brother has the same low opinion of the current SCOTUS that I do. With the exception of Justice Sotamayor and possibly Chief Justice Roberts, the Bilski oral argument didn’t change my opinion much, if any, that regard. In fact, we in the patent bar should hope that Sotamayor gets to write the opinion for the Court. She at least has had some “real world” IP experience.