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The Information Needed to Avoid Writing Bad Software Patents


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: September 9, 2010 @ 3:33 pm
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Software is now and will remain patentable in the United States. Software patents have been vilified by many, but they have been granted by the United States Patent and Trademark Office and upheld in federal courts across the United States. The much anticipated Bilski v. Kappos decision at the Supreme Court did nothing to slow down the patentability of software, and in fact even the original Federal Circuit decision wound up, as applied by the USPTO, to make it more likely that adequately written software patent applications would be granted and transformed into issued patents. What has changed over the last several years, however, is the amount of detail that must go into a software patent application in order to satisfy the adequate description requirements under US patent law. So don’t listen to anyone who tells you software cannot be patents in the United States; it certainly can, but it isn’t quite as easy as it used to be.

Those who despise software patents do have a legitimate point in some regards. They over play their hand badly when they want all software patents abolished, but those who take a more strategic and pinpoint approach do correctly observe that there are a lot of bad software patents out there. But what makes a bad software patent? Those who only endeavor to appreciate (and I use that term loosely) the issues get tied up in pointing out that when a software patent issues the technology has been generally used for many years usually. That is true, but the question is was it generally used or known prior to the filing of the patent application? In most instances the answer is no, it wasn’t. So the first lesson of software patents must be that if you have an innovation you should apply as early in the process as possible. That is good advice for almost all inventions (in my opinion) but critical for software.

The real trouble with the so-called bad software patents is that they typically have non-enabling disclosures. This is not an enormously difficult concept once you know some basics, but it is exceptionally challenging to explain initially. This is one of the things that I have the most difficulty getting across to the clients I represent in the software industry, and the primary reason I am writing this article.

I follow the same process whenever handling software related inventions. We start with a patent search and spend a good deal of time working to understand the core uniqueness, and there is almost always some uniqueness with any software innovation. This iterative and collaborative process I engage in with the client allows me to understand in a detailed way the prior art, and it also allows me to learn far more about the invention from the earliest stages of the process. We collaborate to figure out what the big picture innovation is and what a variety of little picture, or specific implementations, inventions that fall within the big picture.

Transitioning from this I invariably ask the clients to provide me both a macro description of the software and a series of micro descriptions focusing on the various calculations, measurements and systematic handling of data that is the hallmark of every software innovation. At this point I usually receive the first substantial push back. By now the clients are knowledgeable enough to understand that the protection of the micro details is not exactly what they are after for a variety of reasons. First, a narrow patent is not what they want. Second, there are frequently (or typically) a multitude of ways that the micro process can be accomplished.

The first thing to realize is that a patent application has many parts and many purposes. The claims in an issued patent will define the exclusive rights granted, and any patent should have some broad claims and a series of narrow claims, which weave together to create a variety of claim scope. You do this for multiple reasons, but perhaps chief among them is to make sure you have the broadest protection possible while realizing that if the patent becomes valuable enough to litigate you might lose some of the broader claims due to newly discovered prior art. If you only have those broad claims then you might wind up with nothing at all later.



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The specification, which is typically referred to as anything that is not a claim and now a drawing, will describe the invention thoroughly and completely. In fact, most specifications will describe the grandiosity of the invention and include much description that does not specifically pertain to the claims and which may relate to aspects that you don’t think could be captured with exclusive rights. This is because the specification needs to describe the invention so that others of skill in the relevant technology would be able to both make and use the invention without undue experimentation after having only read the disclosure. What is undue experimentation is an article, or treatise, in its own right. For now suffice it to say that with a modest amount of tinkering, trial and error someone reasonably sophisticated in the technology field should be able to bring your invention into being after having only read your patent application. This is what most “bad software patents” fail at. They vaguely describe a process and the reader is largely left up to fill in the blanks and figure it out themselves. Those types of patents wouldn’t issue today, but once upon a time they did issue and that is quite unfortunate indeed.

When writing up a software patent application what we really want is a global flow chart of the implementation that describes the action items that the algorithms will implement. While algorithms are not patentable themselves, what we do is think in terms of process steps. It is critical to realize that a series of algorithms is not an unpatentable algorithm, but starts to define a process. Processes have always been patentable in the United States and always will. Don’t listen to those who tell you software is math and cannot or should not be patentable. That is to miss the forest for the trees, or perhaps to miss the forest for the ants. No doubt that software employs logic that is similar to mathematics, but the innovation that can be protected is the process.

If you have innovative software what you have is this: a task that needs completing and the mechanism to accomplish that task. The task might take a very long time, perhaps forever, without automation. Through the use of tools, conditions and processes (i.e., the mechanisms) you accomplish the task. You see, software directs the successful completion of a task through the use of a host of hardware and communications equipment. When this task driven process is unique a patent can be obtained. It is helpful, although not necessary, to have a unique system architecture as well, which can be protected in its own right separate and apart from the process.

When describing a software related innovation we would like very much to be able to describe the process that the computer will go through in making the comparisons, what metrics will be and could be measured/considered, etc. Perhaps it might be best to consider the algorithms that embody the overall process as a single step within the overall process. In and of itself not patentable, but together with other steps, calculations and comparisons it can and will create a patentable process overall.

It is also critical for a patent attorney to understand the micro aspects of the overall software processes because invariably suggestions can be made and underlying threads and themes will emerge. By understanding the ultra specific it is easy to describe various aspects in illustrative, non-limiting ways and start to be able to formulate a sophisticated understanding of how to describe the specifics in ever more general terms. In essence, by understanding the specifics it makes it much easier to figure out how to accurately and honestly describe what is going on in general, yet intellectually honest ways.

The purpose of the requirement that the specification describe the invention in such terms that one skilled in the art can make and use the claimed invention is to ensure that the invention is communicated to the interested public in a meaningful way. The information contained in the disclosure of an application must be sufficient to inform those skilled in the relevant technology.

In order for any patent application to be complete the invention must be described with great particularity. This may seem obvious, but remember that the patent application needs to explain your invention to someone who is not already familiar with the invention. The best way to do this is to explain it like we used to do when we were kids doing a show and tell at school. You explained everything, no matter how obvious, no matter how insignificant or trivial. Kids do this when they describe things because they have no idea what the person listening knows, and to them it is new and interesting so they explain everything with tremendous detail (whether you want to hear it or not). That is exactly what needs to be done in a patent application. Explain the invention with so much detail that you will bore the knowledgeable reader to death. Focus on the big picture, the little picture and everything in between. That is why it is essential to to obtain both the high level flow charts and a detailed understanding of exactly how the client intends to carry out the implementation of the software innovation.

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Posted in: Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Patents, Software, Software Patent Basics

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

122 comments
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  1. @Gene

    “Those who despise software patents do have a legitimate point in some regards. They over play their hand badly when they want all software patents abolished, but those who take a more strategic and pinpoint approach do correctly observe that there are a lot of bad software patents out there. But what makes a bad software patent? ”

    “But what makes a bad software patent? ”

    The other question for balance Gene is what makes a good one ? It is hard to differentiate the two today because of the fog of litigation that doesn’t allow an observer a clear view of the claimed value of software patents.

    Especially the behavior of software patents not in production software, but rather having only an affinity with potential litigation and the control over future innovation in a given arena. “Patent warehouses” is what I call them, and they serve not to make your, or any point about software patents “value”.

    Intent is hard to prove, but when it is written in black&white the responsibility falls to whom to recognize that claims have gone too far beyond the invention ? Particularity when the claims language really fails to accomplish a limit on the invention’s potential.

    Gene, no can of worms by the SCOTUS, they made responsibility the guide. Responsibility, It has been placed into the hands of the patent world and the SCOTUS sits in wait for the final result of yet another reckless case of “bad software patents”, to show them that its time to take away the toys.

  2. “When writing up a software patent application what we really want is a global flow chart of the implementation that describes the action items that the algorithms will implement.”

    Gene,

    Flowcharts are absolutely critical in preparing a software patent application. As you note, software normally performs a process/method and the global flowchart should illustrate what the various steps of that process/method are or might be. I also use additional flowcharts to describe the subroutines performed by the various steps in the global flowchart. That makes describing the critical features of the software invention much easier.

    Whenever an inventor starts delving into the “bits and bytes” I tell them they’re getting far too detailed for what really matters for describing the software invention. What I want to know from the inventor is what does the software do, i.e., what steps (including optional steps) are performed by the software that will go into that flowchart. In other words, tell me in general terms the “source code” is for that software.

  3. of yet another reckless case of “bad software patents”

    New Here, what was the first such “reckless case” of “bad software patent” that SCOTUS dealt with?

  4. New Here-

    You ask a valid question, about what makes a good software patent. If you read the article you will find out.

    You say: “The other question for balance Gene is what makes a good one ? It is hard to differentiate the two today because of the fog of litigation that doesn’t allow an observer a clear view of the claimed value of software patents. ”

    Actually that is incorrect. Most of the so-called bad software patents that the haters point to are, when litigated, upheld as valid and found to be infringed. So it is really quite easy if you actually pay attention to litigation to follow along. The trouble is that the haters pretty much never care about the law and care only about their initial knee-jerk reactions. No one cares to look at the filing dates and determine if there is prior art to invalidate.

    You ask: “the responsibility falls to whom to recognize that claims have gone too far beyond the invention ?”

    The responsibility is on those in business to make sure they are not infringing. That is one of the biggest problems with the software industry. They do not engage in business responsible or appropriate due diligence because they believe they should have the right to do what the want and patents should not be granted for software. That head in the sand approach is like saying “I don’t believe a drinking age of 21 is appropriate so me being 19 should be able to purchase alcohol whenever I want because the law is unjustified.

    As for SCOTUS, you can keep dreaming that one day they will say software cannot be patented, but that won’t happen.

    -Gene

  5. Gene,
    You and the industry still fails to provide a good, user annotated, database that can be used to invalidate art. If the information is not in the public domain it cannot be used to invalidate patents. Examiner’s will have a hard time finding prior art if it is not available.
    IF the haters truly want to improve patent quality, they should develop a public “wiki” style software database that annotates different software methods, ties the process to the code with a flowchart, and summarizes the usefulness of the software. If it were accurately dated and easily searchable, then there would be irrefutable prior art.
    As it stands, a blanket statement that all patents are garbage does not hold up in court or in front of the patent office. A better argument is needed. I prefer fact based arguments. Of course this might reduce IBM’s 3000+ patents a year, so don’t bother asking them (or Kappos) for help.

    Mike

  6. @Gene
    “That head in the sand approach is like saying “I don’t believe a drinking age of 21 is appropriate so me being 19 should be able to purchase alcohol whenever I want because the law is unjustified. ”
    I’m not sure I can agree that the action you present is really wrong. The formation of the US was largely based upon objection to laws perceived as unjust. The fact that the drinking age of 21 in all US states is actually the result of using economic pressure at the federal level to effectively remove certain rights a state has to self-govern. While it may be utilizing a constitutional loophole, it is clearly against the spirit of the 10th amendment. Now, in regards to patents, I think validity is something we should be constantly evaluating, because the costs and benefits of granting them are anything but static. However, I don’t think that an ethical concern is why these companies ignore patents, though, but a pracical one instead. For many of them, it’s more effective to license the clearly patented technology such as codecs, and just wait to get sued for everything else. Settling with the one that sues them could very well be cheaper than proactively licensing with the 20 odd others that probably wouldn’t have sued but a thorough patent search would return. If it wasn’t more cost effective to ask forgiveness than permission in so many cases, then the billion dollar software companies, for whom the searches would be a relatively small cost, wouldn’t be getting sued all the time.

  7. Gene,

    But what makes a bad software patent? Those who only endeavor to appreciate (and I use that term loosely) the issues get tied up in pointing out that when a software patent issues the technology has been generally used for many years usually. That is true, but the question is was it generally used or known prior to the filing of the patent application? In most instances the answer is no, it wasn’t.

    Ah, like the patents that Oracle is using against Google. The basic functionality that they describe was in the Unix operating system ten years before Oracle filed.

    Of course the Unix operating system was never ‘common’, unlike Windows, which curiously uses many of the same functionality, and also predates Oracle’s patent filing.

    Wayne

  8. Ten years? Should be easy enough to use the law-approved vehicles then for removing unwarranted patents from the system. Just ask Microsoft how well that works with i4i.

    Oh wait – those “bad” software patents were actually found to be good? Well, they say Justice is blind.

  9. @Mike Re: #5

    Mike I have to ask please, will all that well documented prior art be looked for if it existed ?

    I will add, that the patent office offer like information detail about patent applications. That way both can see and understand the other. Those outside the patent office doors shouldn’t have to offer up food the the gods to save themselves. The issue of patents is the responsibility of the patent office, and so are the “bad” patents too.

    Prior art should be job one at the patent office, its not, so many patents roll out the doors – (regardless of who those patents are for !) – with little or next to null knowledge of what is being patented. That is sad and a serious responsibility of the patent office, and not those who are only seen as those that infringe and not infringed upon.

    The Law isn’t in stone, it can change !

  10. Ten years? Should be easy enough to use the law-approved vehicles then for removing unwarranted patents from the system. Just ask Microsoft how well that works with i4i.

    Oh wait – those “bad” software patents were actually found to be good? Well, they say Justice is blind.

    I suggest you read this article about a case that IP Innovation lost in Texas, when the defendants brought an antique computer into the courtroom and demonstrated the functionality covered by the patent. The case was heard in Marshall Texas, where I understand the courts handle patent cases very expeditiously. Prior art is prior art.

    And if prior art exists, well, the patent is invalidated.

    Wayne

  11. Software patents have to be abolished altogether. Canada is among a growing number of countries (New Zealand joined recently) that do not allow patenting of software per se. The Unites States is among a very few countries that allow, and even actively advocate for, existence of software patents. I realize that had Microsoft, Sun, Oracle, Accenture, HP, SAP, Google, Yahoo, CA been Canadian, German, French or Australian companies, the United States would be against software patents. Since the United States motivation is purely economic, the debate about abolishing software patents in the United States is pointless. It is not going to happen any time soon. However, I cannot help but to make a parallel with imperial metric system which the United States continue to proudly and solitarily maintain. It seems that in both cases there is also a desire to be “different”.

    Andrey, http://www.pinskylaw.ca

  12. MH-

    I am sure those patents Oracle is using will be vetted, assuming the goal is for Oracle to win. This could just be a stunt to get a licensing deal, in which case we might never know. Of course, what you raise here is the exact type of analysis that should be going on. I don’t lump you into the non-believer crowd. You actually look at the facts, like the filing date and what was known before that critical date.

    Let’s assume that the Oracle patents are ultimately found to be no good. The reason for that is due to a lack of searchable prior art references available to patent examiners (and others) at the time the application was filed. By not allowing “software patents” really what happened is the prior art was buried in code, programs, textbooks and journals, none of which the patent examiners are really able to search given the time they have now, or had back then. So as a general proposition the older the software patent the more likely it can be invalidated. Of course, that would not really hold true for many smaller companies who were trying to build a dominant company on one or a few innovations. They tended to write much better software patents, hence those that are litigated from the smaller companies tend to be found valid. Of course, lots of generalizations here, but based on my observations.

    Oracle v. Google should be quite an interesting case.

    -Gene

  13. Mad Hatter,

    Prior art is prior art. And if prior art exists, well, the patent is invalidated.

    As I said, there are methods already existing to rid us of patents issued in error. Perhaps you missed that.

    That being said, how do you explain all the fuss about how “b” it is to issue such patents? Compare that to the other type of error – denying a real patent when the Office should not. Which creates more harm? Which can be corrected?

    I see that you still insist on fighting battles on unknown terrain.

    Andry,

    Before you venture forth with your “musts”, you might try putting together a cogent argument under US law. In some case, being different is a good thing – ask yourself who has the world’s most powerful and most desired patent. Now ask yourself why. Now ask yourself why should that country want to change. Advocating change is one thing, but to advocate effectively, you need to try a different method. BTW – what it the “imperial metric system” you are on about?

  14. @Blind Dogma,

    Unfortunately I have an interest in ethics. In the case mentioned above, Sun (the original patent holder) was the owner and producer of the Sun OS and Solaris operating systems. Since both Sun OS and Solaris are Unix, the one based on the BSD branch, and the other based on System V, Sun would have been well aware of the prior art.

    Since Sun would have been well aware of the prior art, filing a patent which ignored the prior art would have been unethical, and should be punished.

    This assumes that the court reaches the same conclusions that I did of course.

    Wayne

  15. Unfortunately I have an interest in ethics

    There is nothing unfortunate about that, and for all the ribbing I give you about Sun Tzu, I do recognize the difference between your posts and those completely blinded by their dogma.

    I just don’t want you to shoot your one good remaining eye out.

  16. If software is not math, what is the difference between the algorithm and the computing process? Asking this question here is like asking an alcoholic why doesn’t he stop drinking, but I think the question should be asked.

    Did Congress place any limits on the definition of process? Are you so sure that the term “process” includes mental steps? I think they excluded mental steps. I don’t think that mental steps, which can be executed with software, can be patented.

    More to the point, can an inventor lay claim to any method used to achieve the claims in a patent? Does it matter which language it was written in? Or even which code was used? In hardware patents, you only get one method for a claim. You don’t get protection from any method at all that achieves the claims. They proved that in Ariad v. Lilly.

    That, in my mind makes the difference. Software patents claim any method to make a bridge. Hardware patents only get to claim one method to make a bridge. Or are you talking about patents on *ideas*, Gene? If so, then hopefully the courts will wake up and smell the innovation with freedom from software patents.

  17. “I just don’t want you to shoot your one good remaining eye out.”

    However, in the land of the blind, the one-eyed man is king.

    Better for 10 “bad” patents to issue than for one legally entitled patent to be denied.

    For while those bad patents can be later swept away, the deserving, legitimate inventor is left with . . . nothing.

    THIS is what those who assail the PTO should most care about.

  18. “Better for 10 “bad” patents to issue than for one legally entitled patent to be denied.”
    I have to say I disagree. A patent that isn’t granted doesn’t do any harm. The effect of not granting a patent is neutral, and the inventor is left with what they can get from the market.
    Granting a bad patent, on the other hand, can easily inhibit innovation, even if it is eventually invalidated. For example, Red Hat won a patent suit regarding virtual desktops recently because invalidating prior art was found (from Amiga, if my recollection serves me). Although they won, they incurred considerable legal costs that could have been put towards development of better, more innovative software.

  19. FYI, Martin Goetz who is credited with having received the first software patent wrote an article titled In Defense of Software Patents – Part 2 which was published on PatentlyO. Curiously the post has disappeared. But not before I grabbed a copy :)

    I don’t have time to read it right now, but it looks interesting.

    Wayne

  20. Scott Dunn-

    After Bilski v. Kappos mental processes are abstract ideas, but of course software is not a mental process. I know that is where you are trying to go, but you would have to be nearly brain dead to make that comparison. You do realize that software runs on a machine, right? So that pretty much kills your argument. Thanks for the laugh though. Software can execute mental processes on a machine so that means that the software itself is a mental process. That is a GOOD one! LOL

    You can’t be serious asking what the difference is between an algorithm and a computing process. Obviously you know little or nothing about programming if you don’t understand what an algorithm is, or that a single algorithm does not make a patentable process. You really should educate yourself before making yourself look so foolish.

    -Gene

  21. @Gene
    “You do realize that software runs on a machine, right? So that pretty much kills your argument.”
    All mental processes run on machines. If running on a machine makes something not a mental process, than you did not exercise any mental processes in writing your post, because you ARE a machine.

  22. A patent that isn’t granted doesn’t do any harm”

    More nonsense through the filter.

    All mental processes run on machines.

    How about dreams? Unless of course, you are defining the human body as a “machine“…
    Oh you are – then I guess you are really screwed – in case you missed this law:

    35 U.S.C. 101 Inventions patentable.

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    Bobby – take a deep breath and put down the shovel.

  23. Bobby-

    You are incorrect. We are having a debate about patent law and the term “mental process” has a specific meaning in the patent field. So I can safely, and with 100% accuracy, say that mental processes do NOT run on machines. Computer implemented processes run on machines.

    You and so many others are misguided by the fact that a process that could be carried out in one’s mind if they could live for a thousand years is carried out on a machine and accomplished in seconds. That is an innovation; an patentable invention if it is new and nonobvious. Distinguish that from a “mental process” that occurs only in one’s mind. A computer implemented process does not and by definition could not be run in one’s mind.

    -Gene

  24. @Gene
    “So I can safely, and with 100% accuracy, say that mental processes do NOT run on machines. ”
    There are mental processes that ‘run on’ humans. Human are machines. Therefore, there are mental processes that ‘run on’ machines. ‘Runs on a machine’ does not make something not a mental process, so you are going to need better criteria for exclusion.

    As for the matter of speed, that is mostly dependent on the hardware and the level of abstraction. Bipedal locomotion and navigation require calculations that most digital computers can’t do competitively, but don’t even require active thought for a developed human machine with the proper instructions.

  25. Bobby,

    Please comment on the law as I noted above (35 U.S.C. 101).

    In your penchant for obfuscation, it appears that you have simply outsmarted…

    …yourself.

    Whole new world you’ve opened up for yourself.

  26. @BD
    Not quite sure what you are getting at. I think the machines computer software runs on are patentable, but that says nothing about whether software is a mental process or not. As for humans being patentable, which is the only other angle I can see, there is a lot of prior art, claiming to be an inventor is questionable, only clones would be covered, and knowing the machine is worth seeking a patent for in the first year is going to be tough. Also SCOTUS might have objections to patents covering sentient beings.

  27. @Bobby Creating a new and better human is both easy and enjoyable. It does not fal into the category of invention though.

    @Gene You are a dogmatic believer in software patents, so I’ll not try to convince you. I doubt the SCOTUS ruling that software is unpatentable because it always is an abstract idea would convince you. The machine or transforation test that was upheld as giving a clue as to patentability may give you a hint that important courts in the US do not neccessarily share your views.

    You definitely have a different defeinition of good patent and bad patent. For me a bad patent is a harmful patent and a good patent gives at least as much to the public as it takes away. For you good seems to equal enforceable, will withstand court scrutiny.
    In my sense, all software patents are bad, as they give nothing in return to the community, but they do take away a lot of freedom, even the freedom to accidentally and incidentally include something that was patented in one of your “good” patents.

    As for discounting someone because in your mind he’s not a programmer and you do not understand his question, try to make an effort to actually provide a reasonable response.

    What you seem to be doing with your clients looks like use case analysis (ask for use cases if they have them, it will save you a lot of time asking questions that were probably already answered). This is such an important step in making software, but the bulk of the effort lies elsewhere and you know it. The trouble is software patents are trying to protect anyone from implementing a similar use case whereas the bulk of the effort is done in another development phase: development and testing. And the product of that effort is sourcecode that is protected by copyright. So in order to capture your invention, your patent should be based upon sourcecode and would both describe it either verbatim or near enough to be reproducable with minimal effort and be limited to that sourcecode. After all, if you invent a sailing ship using sails, you don’t get a patent on any ship that moves of its own accord, just on a sailing ship using sails.

  28. There’s where you are so wrong Gene. A machine just does what a it is programmed to do. Where a real mind, may take time to assimilate what it has been fed. And sometimes it has been fed WAY too much. But somehow it is the mind that begs the question,. then answers the question, that the programmer fills the data into the (machine) reader.

  29. Bobby,

    What I am getting at is to point out to you that your comment about humans being machines, that you made in order to obfuscate the software discussion, runs smack right into the law which says machines are patentable.

    If you want to place “human” in the machine category – you need to square this with the letter of the law. If you want to leave your obfuscations behind, you are going to have to yield to Gene’s point about software on a machine as he is using that term here.

    Either way, your position fails.

  30. “The specification, which is typically referred to as anything that is not a claim and no[t] a drawing,”

    Typically, yes, which is strange since 35 U.S.C. 112 defines the specification to include the claims:

    “The specification shall conclude with one or more claims …”

  31. @Blind Dogma
    Humans are machines. There is no reasonable doubt about this. The reason the USPTO and the courts would reject a patent on a human wouldn’t be because it isn’t a machine.

  32. Brian-

    Yes, it really is odd. But when you amend an application there is a specific section for amending the claims and a different section for amending the specification. Not really important I guess, just strange.

    -Gene

  33. Michael-

    You say: “I doubt the SCOTUS ruling that software is unpatentable because it always is an abstract idea would convince you.”

    You are 100% correct, because that will NEVER happen.

    You say: “So in order to capture your invention, your patent should be based upon sourcecode and would both describe it either verbatim or near enough to be reproducable with minimal effort and be limited to that sourcecode.”

    That would make sense perhaps, but that is not the law.

    You say: “After all, if you invent a sailing ship using sails, you don’t get a patent on any ship that moves of its own accord, just on a sailing ship using sails.”

    Not exactly true. It depends on what the patent application discloses and the claims actually cover, and that is where you make your mistake. The patent application should disclose far more than what the inventor originally thought they invented. It is the job of the patent attorney to pull out of the inventor and the invention provided whatever can be protected.

    -Gene

  34. Bboby,

    You then agree that there is a distinction that you are making when it comes to the Patent Law, correct? If not, please define “machine” as the Law states it.

    wouldn’t be because it isn’t a machine.
    Do you submit that machines are patent eligible? (This is an easy Yes/No question, but you may be able to gather that the simple answer destroys your position above)

  35. your patent should be based upon sourcecode and would both describe it either verbatim or near enough to be reproducable with minimal effort and be limited to that sourcecode.

    Michael, are you familiar with the legal concept of PHOSITA? Do you recognize the impact that PHOSITA has on what must be included in a patent application. You may be more familiar with Copyright submissions, but patents and copyrights are two very different animals.

    The machine or transforation test that was upheld as giving a clue as to patentability

    Another example of twist that happens when Dogma rules. The Test result given by Bilski was an absolute failure to those who desired an end to software patents. The Test indeed is still a clue – but this is important – that test is neither necessary nor conclusive. Additionally, the Bilski decision was not concerned with software patents, and typically software patents pass the machine or transformation clue.

  36. @Blind Dogma
    “If not, please define “machine” as the Law states it.”
    I’m not sure if there is a legal definition to it, but wikipedia’s definition seems appropriate. “A machine is a device that uses energy to perform some activity”

    “Do you submit that machines are patent eligible?”
    Machines can be patented, but that doesn’t mean all machines can receive a patent. I’m not sure exactly what the exclusion criteria would be, but I’m fairly sure it wouldn’t be that “a human is not a machine” because humans are undeniably machines. It is nonsense to suggest that they aren’t. One likely route is that the grant of a patent would restrict the rights a patented person has, and these rights would take precedence over patents.

  37. @Gene

    Re:
    Michael-

    You say: “I doubt the SCOTUS ruling that software is unpatentable because it always is an abstract idea would convince you.”

    You are 100% correct, because that will NEVER happen.

    Gene what happens when enough of the rest of the world the United States is importing / exporting goods from / to that may feel the United States patent system is too much a threat and do you see the United States lose trade with those that choose to end software patents because the idea of ending U.S. software patents ” will NEVER happen” ?

    Gene, nothing personal, but what a dream you have there !

  38. Seriously Bobby?

    You realize that patents are a “legal” entity,and you want to base your premise on Wikipedia? I thought you wanted to have a serious discussion.

    As far as your “doesn’t mean that all machines can receive a patent“, of course not – but that is not the argument, now is it? Lot’s of things that are patent eligible cannot recieve a patent. That’s what the other parts of the law take care of. HOWEVER, the wholesale exclusion (pun intended) that you seek is based on “eligibility“, and your submissions (on the points I raise) defeat your very own argument.

    That is why I said at post 29, either way your position fails.

    But keep on arguing yourself into a smaller and smaller circle – it’s rather amusing to see you spin.

    New Here,

    As Gene is discussing the law as it is (and will likely be given the fundamentals as they are) and you are discussing some far off (fantasy) desired outcome, it is clear just who is dreaming.

  39. @Blind Dogma
    There are similar definitions from other sources, and EG used Wikipedia in the comments of the counterfeiting article. Wikipedia had the best definition that was readily available to me. My argument is not about the patentability of humans. I don’t know exactly why patents on humans would be rejected, and it isn’t important to this conversation. I’m saying that Gene’s criteria for saying that software is not a mental process is not adequate. Running on a machine does not make something not a mental process because humans are machines and we recognize humans as performing mental processes. Your claim appears to be that humans are not machines because humans are not patentable. Humans are undeniably machines.

  40. First, off, let me get rid of those readers who want to ignore me. I am a “software patent hater”.

    There, anyone left?

    Well here goes. You’ve written an interesting and intelligent argument. The statement about compounding algorithms, is truly insightful. Now here’s my problem with patents today and software patents in specificity. Too many little improvements are being allowed to be patented. Patents should be for truly unique inventions. The light bulb, the phonograph, the electric DC motor, the AC motor, the computer, etc. The windshield wiper, maybe. The intermittent windshield wiper, no. Getting my drift. The leap from constant speed to variable speed isn’t a great leap. The patent office is too focused on granting patents, and it should be more focused on denying patents. It’s better to deny 1 good patent than to accept 9 bad ones.

    That is unless, an inexpensive process can be implemented to rid the world, or at least the US, of badly issued patents. When the cost of invalidating a patent exceeds the cost of taking a license, the system is broken and unfair.

    Now to software patents. I believe that software should be unpatentable, because the patentable invention was the creation of the computer that allows the processing of algorithms and processes at beyond human capacity speed. That is my opinion, and not a reality of the world. There may be a software program you could convince me is worthy of a patent, but I doubt it. I am skilled in the art. I may even be more than ordinarily skilled in the art. I have looked at the Sun/Oracle patents, and there is sufficient prior art, in fact the Windows operating system itself is prior art and pre-dates the filing dates of the patent by at least two years (not all versions of Windows). Some of the other prior art is decades older than the filing dates.

    Sometimes, though finding prior art is difficult, because no one ever did it the way the patent reads, because at the time, the hardware wouldn’t support such recklessness. That iPad in your hand has more power than the first mainframe. Sometimes the invention was easily knowable and obvious, but not practical or affordable to implement. I have had this happen to me numerous times. “If only the computer could do this, then I could write my code like this”, only to have that solution in hardware come after I’ve already implemented another solution.

  41. and it isn’t important to this conversation.

    Then why, Bobby, why did you bring it up? But now that you did – you need to unwind it a bit more, because as I have said – either way, your position fails.

    Spin a little faster…

    Too many little improvements are being allowed to be patented.

    Jack – kudos. That’s a logical statement that doesn’t bend the laws based on some overriding Dogma.

    But after that you start to lose it because you probably don’t understand the law and don’t realize that you have to operate within the law. Well at least you had a nice starting point.

    A prime example is: “The patent office is too focused on granting patents, and it should be more focused on denying patents“.

    Even the leader of the Office has proclaimed that Quality does not equal Reject. Also, the fact that you value certain improvements over others is in no way indicative of “invention”, or even if someone else feels completely different. Your statement of “There may be a software program you could convince me is worthy of a patent, but I doubt it. ” evidences more subjectivity than you might imagine. Since you are more than one of ordinary skill in the art, you admit a bias that exceeds the legal limits. Given your bias and your lack of understanding of the law, it is no surprise then, that you feel as you do.

    For the issue of prior art, you can submit that to the parties that you may thin would benefit and certain (legal) prior art can easily serve as a basis for invalidating those patents you feel are invalid.

    I believe that software should be unpatentable, because the patentable invention was the creation of the computer that allows the processing of algorithms and processes at beyond human capacity speed.
    This is also a fallacy that is oft repeated because people do not understand what the law has to say about improvements, or what a “newly configured” machine is. Many others have more eloquently discussed this, so I would recommend searching the patent blogs for In re Allapat, for starters.

    Sometimes, though finding prior art is difficult, because no one ever did it the way the patent reads” Then that is what is called invention. Like others who do not understand the law and like that “feelings” should play a bigger part (as in that doesn’t feel like an invention…), you need to understand or at least recognize that the law operates a certain way and that for those items that pass the test, those items are not only “inventions“, but that they are patentable inventions. If you don’t understand the law, you are bound to be confused by relying on your feelings – especially as you say, you are more skilled than the ordinary artisan.

  42. @BD
    I didn’t. I brought up that people.are machines, a fact that directly refutes Gene’s point. I also took a guess at your cryptic reply and addressed several problems a patent on humans would face. Perhaps that was a bit of an unneeded tangent, but I figured you would attempt to egg me on if I didn’t at least partially address it. Derailing a conversation doesn’t prove me wrong, though.

  43. @Gene Re: #37

    My question isn’t about the Law. Sorry to say but U.S. Law doesn’t run the world, and always making every point based upon the Law doesn’t stop the questions because those asking seem not to know it. You nor I make the Law so who is really to say what will change about the Law in the future ? Let’s keep it real ?

    Like it or not parts of the world are seeing the U.S. patent system as a big question in their minds. Here in the U.S. the question is the same. No dream here, because it is many people from Law as well many walks of life taking steps to change the Law …patent Law that is !

  44. New-

    You say: “You nor I make the Law so who is really to say what will change about the Law in the future ? Let’s keep it real ?”

    I would like to keep it real, but you keep wanting to pretend that the Supreme Court may rule software unpatentable. That is not going to happen. Even the Supreme Court of the United States is stupid enough to destroy the American economy that way. So you might not know what the future holds, but I do. So does anyone who wants to look at the question honestly. Software in the US is patentable and it would destroy the economy and erase the entire valuation of hundreds, perhaps thousands, of US companies. It won’t happen.

    Just keeping it real :-)

    -Gene

  45. Bobby,

    The point you miss is that you brought up the point to prove a point, and you failed.

    I am only showing the lack of consistency and logic in your arguments and how that lack “derails” your propositions. Seeing you run in circles, trying to catch your tale is quite amusing – for me. I do recognize that for some this may seem like unmerciless taunting – there are some who might feel sorry for someone who does not realize that one cannot rely on one’s “fact” because that “fact” is refuted with the very letter of the law, and then turn around and redefine that “fact” for a different argument. But then again, you changing “facts” midstream is par for the course of our conversations.

    But enough toying, for now. The bottom line is that you have proven yourself wrong, and just don’t realize it yet. When (if) you do realize it, we might actually be able to have a conversation. Until then, I will have to settle with amusing myself at your expense.

  46. @Gene
    There is a competitive disadvantage for practicing entities operating within a country that has patents on something that other countries don’t, especially if other countries can file for patents in your country. If Germany doesn’t have patents on chemical products, but the UK does and both countries allow foreign companies to file patents, Germany can copy UK chemicals cheaply, getting basically 100% of the benefit of their patent system without any R&D or paying any royalties, while German firms can take any innovations they make, get patents for them, and place a burden on UK firms that results in positive cash flow for them.

    To put it on a smaller scale that perhaps makes the point more clear, imagine offering a single entity a ‘get out of patents free’ card. They can copy any ‘software ideas,’ ship any codecs they want without paying royalties, and using the best known techniques that may be prohibitively expensive for others to use. Even if others do use them, they are still an added cost. What company wouldn’t take this deal? Now, imagine other companies being offered this deal one by one until only one company remains that follows patents. They have patents that are effectively useless against other companies, while these companies have patents that are effective against them. I have to say, I would not want to be at that company.

    @Blind Dogma
    I don’t think the letter of the law has said that humans are not machines. I would contend that even if it did, that it would be untrue, much like a law ruling that pi is exactly 3 wouldn’t change the actual value of pi. We are machines, and your reply didn’t change that. I question the validity of patents regarding humans, but I would love to see the show if someone tries, as I suspect it would be hilariously entertaining. If you know of anything at all similar, please tune me in.

    Just for fun, though, do you actually contend that humans are not machines? Answering might help me get a better grasp of what makes you tick.

  47. Bobby-

    You say: “There is a competitive disadvantage for practicing entities operating within a country that has patents on something that other countries don’t, especially if other countries can file for patents in your country. If Germany doesn’t have patents on chemical products, but the UK does and both countries allow foreign companies to file patents, Germany can copy UK chemicals cheaply, getting basically 100% of the benefit of their patent system without any R&D or paying any royalties, while German firms can take any innovations they make, get patents for them, and place a burden on UK firms that results in positive cash flow for them.”

    Whether Germans exploit the UK or not doesn’t really have anything to do with what we are discussing really. Didn’t you say that awarding patents to foreign corporations costs US jobs? I explained that was incorrect, and now I am not sure I understand where you are going with this.

    Based on your second paragraph I think you don’t fully understand the power of a US patent. A US patent prevents the importation of products that would be infringing if produced in the US. So you can ship code all over the place, if you want it to come back into the US then it better not be infringing. A US patent only protects in the US, but the US is at least two-thirds of the world market for practically everything. Having a right that locks up the US and prohibits importation into the US is quite a powerful right, and why every technology company should have patents.

    -Gene

  48. “Didn’t you say that awarding patents to foreign corporations costs US jobs? I explained that was incorrect, and now I am not sure I understand where you are going with this. ”
    I don’t believe I said that about jobs. As for where I’m going. I’m pointing out the disadvantage the US faces if we have software patents and other countries don’t. Assuming that firms have at least a decent amount of focus domestically (for them), then countries without patents on software get to use everything nice that’s been developed without paying royalties. Let’s take an example of set top boxes for media playback, where codec support is going to be a fixed, predictable, cost. Let’s say hypothetically that the royalties are $3 per box for every codec in widespread usage. If you buy one in a European country without software patents, they can either sell it for the same price as the US version and make $3 more , or sell it for $3 less and have a more competitive product. In the US, we’d have to pay the $3 in royalties, and these royalties would go to Domestic firms like MS and Apple, and foreign firms like Daewoo and Fraunhofer. US consumers are paying money that some European consumers aren’t (although Euros do pay more in VAT and an odd exchange rate/psychological pricing problem), and a considerable amount of that money is going to foreign companies. Meanwhile, there are quite a few countries where the usage of software covered by US patents is being sold patent royalty free, resulting in no income for US firms. I would think the problems of money leaving but not entering the US due to US policy would be fairly self evident.

    This kind of disadvantage on an uneven playing field is why we shove copyright and patent agreements and economic and political pressure to enforce them down the throats of developing countries and even countries with different laws in the name of harmonization. This is why there was international pressure on the US to recognize some foreign works under the Uruguay Round of GATT, which is why we passed the Uruguay Round Agreements Act, which actually took works OUT of the US public domain.

    “A US patent only protects in the US, but the US is at least two-thirds of the world market for practically everything.”
    Wow. Just wow. We aren’t even two thirds of the world in oil consumption, which is probably one of most disproportionate markets.

  49. Bobby,

    Answering might help me get a better grasp of what makes you tick.

    Word of advise: spend less time trying to figure out what makes me tick and more time understanding the basics of Patent Law. To do this, you will have to suspend your bias against patents, and given the degree of filtering that you exhibit, this will not be easy for you. Necessary, but not easy.

  50. Blind Dogma,

    Perhaps you could try not quoting me out of context. Then perhaps you’d actually come away understanding what I wrote. When you wrote about my feelings, Well, you must be a psychic, because I never spoke of my feelings. I spoke purely on an intellectual level and not from any Dogma I may have. That is the only proper way to discuss issues, especially legal one. Just the facts, and logic. Being a mathematician and Computer Scientist, I’m trained in the use of logic. I assure you, I understand the law. Do not confuse disagreement with the law as not understanding it. As far as the law goes, I see no connection between denying inventions not worthy of the special protection afforded by patenting as a conflict with the law. The simple fact is, that in recent times the number of patents granted have increased geometrically. In the early days of the patent office, they rightly reject a great many applications. Patent protection is a reward for being the best of the best. Not for simple improvements.

    Furtermore, had you read my entire comment on “nobody ever did it that way”, you’d have understood, that I was saying people don’t try to do things they know in advance won’t work with the current technology. You see software is limited by the hardware. If you want to model the migration of Monarch butterflies and it’s affect on weather, you’d better have a teraflop supercomputer, because it won’t work on a PC or even 500 PCs or on 10,000 IBM AT computers running at 4.77MHz. The fact we can now model some weather on computers doesn’t make it a novel idea, it has been thought about for decades, but it just wasn’t possible to do in 1980. Just because no ever did it that wya and hence there is no prior art and no one wasted time on a paper about something that couldn’t be done. That doesn’t make it worthy of patent protection. The mathematical model for predicting weather has been well known, but prior to terflop computers no one bothered writing a computer algorithm or process for it.

    You see that’s a real problem with software as patents. It can almost always be traced to mathematical models and proofs completely unrelated to computers. Someday someone will create an truly independent self-teaching AI computer program. It most likely won’t be worthy of a patent, because the proofs and mathematical concepts are widely known. However, I will reserve judgment, until I see the algorithm/process. It may actually entail some unique solution, but more likely will encompass a solution to a math problem that is currently unsolvable. But then, anyone would be able to implement it, as you can’t patent math.

  51. Patent protection is a reward for being the best of the best.

    WRONG. As you are logical, you will understand why if you truly did understand patent law. Being smart in one area is no guarantee that you will be smart in others. Being logical in one area is no guarantee that you will be logical in others. That’s why my Kool-Aid sales put me in the lap of luxury.

    As to why this bald statement of feelings is wrong, simply peruse the Judge Rich article mentioned in the Stevens concurrence of the Bilski case. It’s as logical as can be.

    You have picked something else up with that training in logic – a certain dogma if you want to call it that. I assure you – you do not understand law.

    Nor, it appears do you have a firm grasp on logic. “The simple fact is, that in recent times the number of patents granted have increased geometrically.” To compare this to the early days of the patent office is to profess an ignorance of the power of innovation. Innovation begets innovation. To not expect a geometric increase is to not be thinking critically. One can mistakenly think that they are thinking purely logical, but if they are also not thinking critically, the logic that they are thinking can be inappropriate to the situation.

    To give an example (and I note that I do not believe in this logic): An extremely disproportionate amount of violent crime is committed in the United States by African Americans. Simple logic dictates that African Americans are disproportionately predisposed to being violent, and thus racial profiling is a completely logical societal response.

    To profess as you do that you have been trained in logic, and thus understand the law is a prime demonstration that you are not acting logically – at leas to the degree and sophistication necessary to truly understand the law.

    “You rail on about “that I was saying people don’t try to do things they know in advance won’t work with the current technology. “, but you do not understand that “teaching away” as it were, is a prime example of non-obviousness and that, in fact, people do do things they know in advance “won’t work” with the current technology. Living as you do with your blinders of “I-have-been-taught-logic-and-understand-the-law” prevents you from understanding the law. Contemplate the goldfish in his fishbowl paradigm.

    It most likely won’t be worthy of a patent, ” Yet another example of how you are wrong. “knowing” something and making that something work when no one else has or can (long felt need, failure in the art) are also prime examples of non-obviousness. Seriously, Jack – you don’t know Jack (but you think you do).

    Such are the most difficult people to see anything but what they want to see, because not only so they not know what they do not know, they refuse to believe that they do not know what they do not know.

    As far as patenting “math” – many, many words on that subject have been shared (I include myself, but definitely do not think my writings are the best example), but see if your grasp of logic can understand that “applied math” is patentable. Computer programming is as far from “math” and as close to “applied math” as just about any truism you can postulate.

  52. @Gene,

    Do you really believe that software patents are helping the economy? Does all the hundreds of millions of dollars going into the pockets of lawyers because of software patent lawsuits help the economy? Most of the software patent lawsuits are being done by NPEs. all this creates is a tax upon the real manufacturers, making products more costly, which consumers must pay for leaving less money for other things. Now if you take the NPEs out of the equation you are still left with mega-corporations getting so many patents, that it’d be next to impossible for a real inventor to make anything without being sued to infinity and beyond (ok, so not an original turn of phrase).

    I realize, this is your bread and butter. So your position is understandable. But if you could point to some real examples of how patents, in general, or software patents, specifically, are helping the economy, I’ll give you that point. Please don’t point to the i4i case. That simply shows one small organization winning against a Goliath. I mean actual evidence that any patent has generated more jobs or other benefit to society, that would have occurred had there been no patent? I know this requires hypothesizing a bit. But I’d be real interested in your theory or proof or hypothetical scenario.

    @Blind Dogma,

    I forgot to mention, software doesn’t alter the machine of a general purpose machine. Nor does writing the software into firmware. You might argue that burning it into ROM chips and integrating that into a specific purpose computer does create a new machine. While, I would disagree with that from an electronics and logic perspective, I’d probably let you have that point. By making a special purpose machine you leave the prospect of patenting the entire machine and not just the software, hence the software itself wouldn’t be the patent, but the entire machine. Loading software into a general purpose computer, does not alter the machine itself. As it can still do everything else it could do before, you merely alter the sequence of of electrical signals. It’s no different than changing the roll of paper in a player piano, or changing the record on a phonograph, or putting in a new DVD in a video player. You don’t alter a DVD player by changing the Meatloaf CD for an ABBA CD. See, you’re thinking of software in entirely the wrong way. All it does is cause a general purpose computer to play a different tune. Now software written into the circuitry of a computer, as in the firmware, or the actual chipset, that can qualify as a combined product. Which is the way I read the Bilski decision. I see a real prospect that the SCOTUS will reject the patentability of software in general purpose computers such as PCs and MACs and such, and leave intact software
    combined with a uniquely built and purposed computer.

  53. @BlindDogma

    Obviously, you’ve drank too much of your own Kool-Aid, but I’ll make one last reply, anyway. I know when to leave a debate. First off, I never claimed my logic training granted me any insight into the law. I have studied the law. Simply because I only stated two of the majors I’m degreed in doesn’t mean I don’t have others or other training. No IANAL, or in law school. I know the law, I am not an expert in the law. But knowing the law, being an expert in it and being a lawyer are distinctly different. I realize that some lawyers think no one except lawyers can understand the law. I assure the law isn’t Rocket Science. I say this because I have studied both. The law is certainly complex and the practice of it requires a certain skill and art. I would probably make a poor lawyer. But the law is comprehensible to laymen also.

    Your example of simple logic is sorely lacking, and I could easily pommel your ineffectual argument with true logic. The proper application of logic is anything but simple. Logical arguments are complex beasts. you should try attending logic debates at a university sometime, to get a true feel of the power of logic. But that is neither here nor there.

    But let me assure you my training is well rounded, and I’m very much anti-dogma. I get into regular debates with people over “this is impossible” or “that can’t be done”, etc. I question everything, including Einstein’s “laws”. When I spoke of the best of the best, I was not speaking of person with the “highest” IQ. IQ is the absolute worst test for creativity. When I speak of the best of the best, I speak of creativity and ability to think beyond what is currently “known”. Furthermore, you need to expand your thinking a bit. When I speak of growing geometrically, I speak of ratios of rejections versus applications. Once upon a time the patent office knew that patents could be just as detrimental to the economy and the advancement of science as it could be a boon. The answer is in finding the best balance between the two. In everything good there is some bad. The Suez Canal is a classic example of this truism. It is always important to have the proper balance. Granting patents for pinched PB&J sandwiches, one-click patents, and swinging sideways on a swingset is not that balance. Every rational debater in this argument agrees that a great many bad patents are being granted. In the face of this evidence how can argue that the PTO isn’t focused on granting too many patents, and denying too few? Seriously, you’ve lost any credibility you had. And it’s simply a waste of time to debate this with you any further.

    Happy Trails, BD

  54. software doesn’t alter the machine of a general purpose machine.

    Again wrong – this time in both logic and law.

    I’d probably let you have that point.

    Your “letting’ has nothing to do with it. False graciousness is unbecoming.

    Loading software into a general purpose computer, does not alter the machine itself.

    Wait – you just gave me this point – now you are taking it back? This is even worse than false graciousness. Oh, and you are still wrong about this – both logically and legally.

    As it can still do everything else it could do before,

    Here’s one fault with your logic – sure it can do everything it could do before, but that is the wrong perspective. Ask yourself this – can it do what the patent claims before it is actually configured per the patent? Or to use somebody’s example, let’s have a contest with two perfectly similar machines, one loaded with software and the other blank…. (If anyone can reference this thought experiment, I would appreciate it – the experiment not only covered the instant case above, but also covered the “software loaded to the point of general purpose computer” version)

    It’s no different than changing the roll of paper in a player piano

    Also WRONG – obviously you do not understand the law, as this situation is completely covered by the patent concept of The Printed Matter Doctrine.

    Jack, the more you talk the more you show your ignorance of the law. Can I interest you in my latest offering: the “Argument Shovel”? Great for piling BS and diggin holes – wait, I see you already purchased one. By the way, it goes great with the Kool-Aid I sell.

    Which is the way I read the Bilski decision

    That is extremely scary, as Bilski has nothing to do with software. If you are “reading Bilski, and pulling this kind of “logic” out of it, you are indeed operating under a Dogma, one that you do not even see, one tht you are blind to.

    leave intact software combined with a uniquely built and purposed computer.

    Except, your point of logic is already here – you just don’t know it because of the filter you use in viewing what is logically and legally accepted. The configureing of a machine with new software creates that uniquley built and purposed computer. This is black letter law. Once you open your eyes and remove the filter, you will understand how blind you currently are.

  55. “Does all the hundreds of millions of dollars going into the pockets of lawyers because of software patent lawsuits help the economy?”

    Yes, it actually does. What happens when small companies are successful against large companies is that more small companies being pursuing winning strategies. They patent innovations, receive funding from investors, expand their businesses and create jobs. So of course what goes on helps the economy. Don’t be ridiculous. Look at the economic impact, and stop focusing on the payments that need to be made by those companies that chose infringement over engaging in a business responsible way.

    “Most of the software patent lawsuits are being done by NPEs. all this creates is a tax upon the real manufacturers, making products more costly, which consumers must pay for leaving less money for other things.”

    You are dead wrong here! Look at those companies that are hit by huge verdicts. The prices for the services and products NEVER go up despite having to pay many hundreds of millions of dollars. They already have these payments factored into the price structure, which means several things. First, they know they are infringing and it is a business decision to infringe, so they have a reserve cooked into the books to make payments when the lose. Second, it means that their products and services are artificially inflated in price. So they bake into their prices a substantial premium, and then when they win they keep that substantial premium.

    What is more interesting to me is why do you choose to characterize the patent trolls as the bad actors? Of course, some are, but why not also focus on the willful infringment? Surely that suggest bad action as well.

    In terms of proof that the patent system creates jobs, just look at all those companies that have nothing more than intellectual property and are able to raise money from investors. Pretty much every biotech start-up has nothing more than a business plan, intellectual property and maybe a couple microscopes. So when investors invest and the business expands then tens or hundreds of jobs are created. Investors in the biotech sector fund these companies for a decade typically without any profits, so the investors are all hoping for the homerun and then the ability to own it exclusively for a time.

    Now you might be tempted to say that biotech is not software related, but it is. Look at bioinformatics, for example. The problem with banning software patents is that it would not impact only the software industry. It would impact the biotech industry, the financial industry, the medical industry, etc. etc. Innovations are increasingly relying on software in various forms and shapes to cut down the time it takes to do certain things. Automation = software. So every industry that relies on automation in any way implements software, and an invention that incorporates software and is new and nonobvious deserves a patent. Those patents then lead to investment and jobs.

    -Gene

  56. Your logic is as poor as it is as great as you claim:

    The answer is in finding the best balance between the two

    Such an artificial construct of determining what is allowable based on some ratio of rejected versus accepted is beyond belief.

    You need to stop and think about what you are writing. Your “feelings” have overwhelmed you, and now you are spouting complete crap. Obviously, you are not nearly as smart as you think you are, but don’t get mad at me for pointing this out. You chose to get involved to begin with.

    anyway. I know when to leave a debate.

    When your lunch is being eaten.

    And btw, I don’t buy that crap argument that you postulate that “only lawyers can understand the law” – that is something I never said, nor even intimated. There is a huge difference between that and what I said – your rendiition is yet another example of thw twisting your filter does to logic when you are presented something you don’t understand. Stop projecting. Sit down. Think about your (ir)rationality and just why you find yourself getting so upset. Your mind is fighting the plain truth I speak of. All that you believe is at risk. The castle you have built, with walls so think and so tall, was built on a rotting foundation, and that foundation is giving way – Say “bye-bye” to the tumbling walls.

  57. you choose to characterize the patent trolls as the bad actors?

    Psst, Gene – it’s the Kool-Aid (but keep that just between you and me).

  58. One more tidbit – you pride yourself on questioning, but that is the wrong focus, and is only half the steps towards true liberation of the mind. You really should try listening – but you are too busy asking questions.

    It is one thing to ask questions, but such does you no good when you refuse to accept the answers. The only answers you accept are those that you already “know“.

    I hope you can see the logic of this filter – perhaps after you have calmed a bit.

  59. Nor, it appears do you have a firm grasp on logic. “The simple fact is, that in recent times the number of patents granted have increased geometrically.” To compare this to the early days of the patent office is to profess an ignorance of the power of innovation. Innovation begets innovation. To not expect a geometric increase is to not be thinking critically. One can mistakenly think that they are thinking purely logical, but if they are also not thinking critically, the logic that they are thinking can be inappropriate to the situation.

    You are making the unwarranted assumption that he number of patents issued has direct relationship to the amount of innovation occurring. It might be related, or it might not. The issue is that you cannot prove the point. There is no measurable metric which would prove your claim.

    Measuring innovation is an impossible task. In many cases the innovation might not be clearly visible until years after it was introduced. A good example being the networking of computers at UCLA and Stanford in 1969, which was the start of the Internet. As an innovation it was invisible to the general populace until a quarter of a century later, but that first, slow, link up is the innovation that brought us here together to discuss, well, innovation.

    In other cases the innovation is more easily seen, for a recent example see the IPad. But was it really an innovation? Tablet computing existed long before the IPad.

    My personal feeling is that yes, the rate of innovation has increased. Unfortunately, unlike population, innovation is difficult to count.

    Wayne

    PS: Population isn’t always that easy to count either, my wife was doing some genealogical research, and she’s found one branch of the family which moved to England from Ireland, and which had a nasty habit of not registering births. The only proof she was able to find that they existed was census records.

  60. Interesting article from Cato Unbound.

    Wayne

  61. Blind-

    I know I choose to characterize patent trolls as bad actors, but I also always distinguish patent trolls, who in my mind are by definition the bad actors, and non-practicing entities, who are by definition not bad actors because they are in the business of research and development. My inquiry was simply this… why choose to characterize patent trolls as bad actors and turn a blind eye to the bad actions of the infringers? I also always point out that it is quite absurd to focus on the bad actions of the trolls while not also focusing on the fact that those who are found liable for infringement are tortfeasors and bad actors in their own right.

    So I just wanted to understand why there is the hypocrisy. Why the double standard?

    -Gene

  62. non-practicing entities, who are by definition not bad actors because they are in the business of research and development.

    I think you’re confusing whether the patentee “deserves” his patent with whether the infringement lawsuit has merit.

    Besides which, the purchaser of a patent (which may actually be the company that employs the inventors) is just as much entitled to sue on it as the inventors themselves would have been. I didn’t discover this continent and I can’t trace my lineage back to anybody who did, but I can sure as heck ask the courts to keep unauthorized people off my land.

    What we don’t want happening, at least from an economic standpoint, is a patentee not practicing his invention and also not letting anybody else practice it. That patentee is depriving the public of his invention, and is also violating what I believe is the implicit understanding in the patent system that the inventor be rewarded for his disclosure with the profit from commercializing his invention to the public (whether by enjoying an exclusive market or by earning royalties). But eBay fixed that, so we don’t really need to concern ourselves with anything more than the merits of any individual litigation or threat of litigation.

    Whenever anybody looks to the conduct of the plaintiff patentee for any reason other than quantifying his actual damages from the infringement, I find myself asking “why the double standard?”

  63. @Gene
    I think the ‘hypocrisy’ is because it isn’t reasonable to completely follow the rules as a practicing entity because of the sheer number of patents. It’s cheaper to get sued by one company and avoid the costs of proactively licensing to a few dozen or putting the manhours into working around patents, with a significant risk of still being sued even if you do extensive patent searches. Actors will not follow unreasonable rules, and I think many see the current patent environment for software as unreasonable.

  64. Translation: “It’s easier to steal the ideas and worry about getting caught later. It is hard to actually innovate and I “feel that I should be able to simply take what I want.

    Bobby,

    You refused to deal with the ethical element on the older thread (http://ipwatchdog.com/2010/08/15/the-role-for-open-source-innovation/id=12001/ ) – are you going to take the Fifth on that concept here again?

  65. @Blind Dogma
    Yes, almost the entirety of the software company is lazy, OR there is a serious problem with the patent system in regards to software patents to the extent that it is more economic to ignore patents and get sued a few times than to follow the rules.

    Also, ideas can’t be stolen.

  66. Bobby,

    Was that an attempt at dealing with the ethical element?

  67. Comic by Illiad over at UserFriendly

  68. @Blind Dogma
    What ethical element?

  69. What ethical element?

    Exactly.

    Feel free to refresh your memory with the link I provided – that is, if you can stand the pain.

  70. @Blind Dogma
    The closest I see was that you prescribed to me a position that I did not take and repeatedly asking me to address an inconsistency in said position. I guess you are doing something similar with this one as well with your misleading ‘translation.’ An actual rebuttal would have been much more fruitful, but I suppose that it is hard to actually provide counterarguments and you feel that you should be able to claim that I said whatever you want.

  71. The closest I see

    Then open your eyes.

    I refuted your petty attempt at saying “I did not say that” by quoting you directly. When I pressed you on aspects of your position – including fundamental underpinnings of your stated position, you replied “I take the Fifth”. Now you return to your weak “I did not take a position”, “your translation is misleading”, and “you are claiming I said something I did not”, all the while never getting around to actually addressing the underpinning point that is a foundation for your agenda driven views.

  72. IANAE,

    We have been through this before.

    That patentee is depriving the public of his invention” is a patently false statement. Your paternalistic views (what we don’t want happening) simply do not have a place in the Quid Pro Quo. There is nothing in patent law that mandates that a patent owner must put his patent into actual practice. The mere fact that the right is a negative right should indicate this to you. There is no implicit or explicit part of the patent deal that indicates that the inventor is rewarded with money. You are projecting your personal philosophy where it does not belong.

    Notwithstanding the actual right of the patent holder, the public is not deprived of the invention. The mere publication of the patent enriches the public in many ways. Derivational and work around innovation is fully enabled. The short lapse of time that the public must honor the patent deal term of exclusivity is also more than made up for by the perpetuity that is gained after the short term. These are patent basics, of which I know that you know.

    Whenever anybody looks to the conduct of the plaintiff patentee for any reason other than quantifying his actual damages from the infringement, I find myself asking “why the double standard?”

    Indeed.

    I have no desire to dance the “lessoned status of remedy in exchange for the actual right” dialogue with you. We have also been there, done that and we will not change each other’s minds. I do think that you miss one of the basic tenets of remedy – that of making the victim whole, and are too eager to apply traditional facets of remedy (money) to a very particular field. While in traditional applications of remedy “injunctions” are indeed severe, in the patent field that is simply not the case. In the patent field, there is no better approximation (and none so readily available), to the original right of exclusivity. This bogeyman of severity is simply ill suited when dealing with patents. Exclusivity is not a bug, it is a feature (to use your terms). Exclusivity is simply not “severe” in this field as opposed to the rest of fields that are served by equity. With particularity, the patent field is simply better served with the “severe” injunction because that best serves the Constitutional aspect of Exclusive, and does so far better than laboring over a forced price – and forcing a contract between parties who should be free to contract (another aspect of your thoughts on this subject I dislike being your paternalistic attribution of what the patent holder really wants – I’ve seen the arguments and find your position, well, simply not compelling – you tend to ignore an ideal of contract formation [1st year law school] – freedom to contract, which includes freedom to walk away). The answer to your question of “double standard” has to do with understanding the nature of a patent – the answer is simple, it is not a double standard, it is an appropriate standard.

  73. We have been through this before.

    Have we? What a surprise.

    Your paternalistic views (what we don’t want happening) simply do not have a place in the Quid Pro Quo.

    What we do or don’t want happening is exactly the sort of thing that should be built into the quid pro quo. If you pay people for the wrong behavior, you will get back the wrong behavior.

    Patents are meant to promote the useful arts. They’re optional, but the exclusive right is held out as an incentive to the inventor in exchange for his disclosure. Now, if it’s suppose to be an incentive, we expect it to profit the inventor in some tangible way. The inventor has roughly three ways of profiting from the patent – he can sell it, he can practice it, or he can charge people money for licenses. Now, arguably if the patentee isn’t doing any of those things he isn’t really getting any reward at all, unless he collects red ribbons or something. Also, he’s not fully giving the public its expected advancement in the useful arts.

    Maybe it doesn’t bother you when a patentee decides that he will publish his invention for all to see but for nobody to use. He strikes me as kind of a jerk. It doesn’t actually cost him anything for the public to use his invention. Why would he even bother inventing it just to let it lie fallow for 20 years? We can’t really force him to earn a profit, but if profit is not his motivation and using the invention himself is not his motivation, then what harm does it do him for the public to use his invention? For that matter, what good does it do anyone – including the patentee – to keep his invention from the entire world? And when did it become socially acceptable to keep things from others at precisely zero benefit to oneself?

    I do think that you miss one of the basic tenets of remedy – that of making the victim whole,

    If we’ve had this conversation before, how can you possibly think I’m missing that? The subject comes up every time. If you’re not willing to sell or license the invention at all, at any price, or even use it yourself, you suffer no damages when someone else uses it. You don’t have a business that loses sales, you don’t have licensees who will insist that you sue the infringer or demand more advantageous terms, and you weren’t going to profit from the invention in any way. In fact, many patentees have no idea at all that their patents are being infringed until they pick up a particular product and examine it in minute detail.

    If you are determined to make zero money from your patent, what does it change in your life whether you make zero money from nobody infringing or from everybody infringing? An infringer doesn’t diminish the value of your patent in any way, and even if it did that causes you no harm because you weren’t trying to extract any value from your patent. When the “victim” isn’t practicing or licensing his patent, it takes exactly zero remedy to make him whole for any infringement – no money and no injunction. Incidentally, that’s why the statute provides for “no less than a reasonable royalty” – there’s a minimum remedy because the vast majority of patentees can’t prove any damages at all. The patentee is already whole, because his exclusive right is economically worthless to him.

    (another aspect of your thoughts on this subject I dislike being your paternalistic attribution of what the patent holder really wants – I’ve seen the arguments and find your position, well, simply not compelling – you tend to ignore an ideal of contract formation [1st year law school] – freedom to contract, which includes freedom to walk away)

    Okay then, don’t think of this as a contract. It’s not, really. It’s a cause of action in damages for the infringement of a negative right. They still teach torts in first year too, right? If not, you’ll hear about it next year. The court is basically telling the patentee that the infringement costs him nothing but hurt feelings, so really he should go away and quit wasting the court’s time, and the only reason he’s getting a royalty at all is because the statute imposes a minimum amount of compensation.

    I don’t actually care what the patentee wants. Honestly, who cares if the patentee subjectively wants an injunction? Who cares whether he wants it to deprive the world of his invention or whether he wants it to pressure the infringer into a really expensive license? Who cares if he wants world peace and a pony? Just because he asks for it, that doesn’t mean he should automatically get it, any more than he would automatically get the amount of monetary damages he claims. You only get an injunction if you can show irreparable harm, so why should you get one if you can’t show any harm at all? A violation of your rights that does you no harm at all should “make you whole” by giving you no remedy at all. That’s the appropriate standard.

  74. @Blind Dogma
    Nothing you quoted me as saying indicated a contradiction in my position. The contradiction lies within what you think I think and your misunderstanding of differences when I speak about sets and subsets. Perhaps more importantly, you apparently can’t win this argument, so you are going to rely on an another argument you didn’t win and brought down to trying to trip me up on semantics.

  75. Nothing you quoted me as saying indicated a contradiction in my position.

    False.

    Open your eyes – not shut them tighter.

    Speaking of shutting eyes – “you suffer no damages when someone else uses it.
    Utterly and completely false. In fact – this type of damage cannot be priced – which leads your precious remedy to give … (yes, you know).

    Let’s also think of the following – I own two homes. My estate in upstate New York and my lake view cottage in Aspen. If someone breaks in and lives in my Aspen cottage while I’m in New York and leaves Aspen for New York as I am flying to Aspen to enjoy my cottage, and breaks in and lives in my New York estate, am I damaged? Must I let this person use my second home?

    You are out of your league IANAE.

  76. “you suffer no damages when someone else uses it.”
    Utterly and completely false.

    Okay, so what are your damages?

    You didn’t lose any money because you weren’t making any money. You didn’t lose the ability to practice the invention yourself, because the patent never gave you that right in the first place. The infringement doesn’t prevent you from doing anything at all, or in any way diminish your ability to do anything at all. It wouldn’t cause you any harm even if you were standing there watching the guy as he infringed.

    Your feelings are hurt because someone is doing something you don’t want them to do? Go buy a box of tissues and keep the receipt so you can prove damages.

    Land is different from patents because your rights in land are different, and also because the law relating to land has been different for centuries. Of course you suffer damage when someone breaks into your home. You have a positive right to live in your home, whether you’re currently exercising that right or not.

    It takes more than a violation of a right to get a remedy. It takes damages and causation.

  77. IANAE.

    Damages do not equate to money. Your love of “remedy” blinds you both to the primal call for remedy (make whole) and to the particular nature of patents – Exclusion.

    You yourself have posted about the negative right and the right not including the ability to make money – but in no way is this equivalent to saying that you have no damages. To say you have no damages is equivalent to saying you have no right. To say that you have no damages makes the right worthless. These basic contradictions flow from you forcing the events through your filter.

    You didn’t answer my question. What are the damages from someone living in my other home? Must I let them continue to live in my other home?

    And just as you propose that land be treated differently, so should patents. It really is a simple concept, but you are so in love with the general concept you can’t or won’t accept the reality of the situation.

    As to “You didn’t lose any money because you weren’t making any money. You didn’t lose the ability to practice the invention yourself, because the patent never gave you that right in the first place. The infringement doesn’t prevent you from doing anything at all, or in any way diminish your ability to do anything at all. It wouldn’t cause you any harm even if you were standing there watching the guy as he infringed.

    This is all claptrap. In one example, your right to exclude gives you the right to create a scarcity of market, which would allow you to charge a premium to potential customers. Your right to exclude gives you the power to decide who gets iin on your patent – and the power to decide who does not. There are levels of harm here that a price tag cannot be put on. Tell me again, oh master of the simple concpet of remedy – what level of remedy is called for when you cannot put a price tag onthe damages (hint – it’s not zero).

  78. Bobby,

    One does not win arguments when the other side refuses to see reality. I will settle for being right. You can settle for your fantasies, and your ifth amendment rights.

    As for semantics – take a lesson from IANAE, you can play with semantics and end up in the same place that you personally are now. It helps to actually know the subject, not just part of the subject – know the law and the tech – not just the tech. Know the law concerning patents and the law concerning remedies – not just the law of remedies.

  79. To say you have no damages is equivalent to saying you have no right.

    No, it’s equivalent to saying that the infringement of your right, on the facts of this particular case, has cost you nothing. On different facts, you might have suffered damages. But on this case you didn’t, so in this case you get no remedy.

    What are the damages from someone living in my other home? Must I let them continue to live in my other home?

    Trespass to land always gets you an injunction. Land is a special case, and it has been for longer than the US has even existed. I don’t “propose” to treat it differently. Land is treated differently. There’s almost nothing more fundamental to the common law than “land is a special case”.

    Maybe patents “should” be treated differently, but under the current law they are not. Injunctions have historically been a drastic remedy, one of last resort, and I personally don’t agree with granting them willy-nilly in favor of people who can’t even show damages, let alone irreparable harm.

    your right to exclude gives you the right to create a scarcity of market, which would allow you to charge a premium to potential customers.

    Except that the patent doesn’t even give you the right to sell your invention to potential customers at all, much less charge them a premium. Sure, if you actually do sell your invention, it’s child’s play to show damages and get an injunction, But unless you’re actually attempting to do that, your argument boils down to “well, if I had conducted my affairs differently I’d have suffered damages, for which I’d like to be compensated”. If that’s all it takes, you might as well sue for getting hit by every train that passes by, because you might have been standing on the track.

    There are levels of harm here that a price tag cannot be put on.

    And there are levels of harm for which the price tag is zero.

    Tell me again, oh master of the simple concpet of remedy – what level of remedy is called for when you cannot put a price tag onthe damages (hint – it’s not zero).

    An injunction, obviously. And you do still get an injunction when you can show real but unquantifiable damages. eBay was crystal clear on that.

  80. I understood precisely what you were claiming that I said, and I didn’t say it. You assumed my position and didn’t understand my explanation of subsets (for clarification, I said that all software is math and only some math is software. Therefore non-software math exists, which is what Gene was using as faulty proof.), but for all you know, I could carry the extreme view of a copyright and patent abolitionist, in which case I wouldn’t see software copyright as valid either, meaning that there is no contradiction. I could hold a less extreme personal view that software shouldn’t be patented because software patents don’t work at promoting progress but software copyrights do (or at least cause less harm), and simply be using the math angle as a purely legal defense, since comprehensive economic studies on the effects of copyright and patents aren’t common, and even in the face of undeniable evidence of problems, policy would be unlikely to change in response. I could even be a pleased holder of several software patents who just likes to play devil’s advocate.

    The semantics element was that you were playing with semantics to try and trip me up into stating a contradiction.

    You may know more about the specifics of the law than me, but you seem to have deficiencies in understanding logic, such as trying to deny my rebuttal to Gene by stating that machines are patentable, which does nothing to show whether or not humans are machines. You couldn’t even come up with a coherent sentence to explain how I was wrong, instead relying on me interpreting your vague comment to try and start an argument.

    And AGAIN, you aren’t actually debating my actual point in this discussion, and are instead trying to win a victory on some barely related tangent.

  81. Bobby,

    Your answer (once again) is off in that you say that I say that you say different things than you say.

    You know that I know you know I nailed you.

    Dropping back into a “I could this…I could that… misses the point of what you did as well as what you <did not.

    And AGAIN, you aren’t actually debating my actual point in this discussion, and are instead trying to win a victory on some barely related tangent.

    And AGAIN, I am not trying to win a victory in an argument when the other side refuses to see reality. And AGAIN, you haven’t answered the questions I put to you – the ones that you scrambled to proclaim your Fifth amendment rights. The ones that dismantled the foundation of your castle walls.

    IANANE,

    An injunction, obviously.

    Return now to the peaceful and calming exercise wherein you realize a basic premise of equity in making the victim whole and what that means in the special cases of Intellectual Property. Refrain from misapplying the basics. Refrain from categorizing something as “severe” when that something is the best approximation of the actual right. Contemplate why you are fighting so hard to make the victim whole and merely want to exchange a much less valuable choice of remedy, when a much more appropriate choice of remedy is available.

    You also have not answered my questions.

    That’s OK – I get a lot of that from people who don’t know what they are talking about.

  82. a basic premise of equity in making the victim whole

    Yes, equity makes the victim whole. Equity does not take from the defendant more than what is required to make the victim whole, except in corner cases that don’t really apply here where the plaintiff can claim the defendant’s realized profits.

    If the plaintiff does not require an injunction to make him whole, equity does not give him an injunction. That’s precisely why, even in equity, an injunction is only granted when monetary damages are not sufficient to make the plaintiff whole. That principle survives today as the requirement to show irreparable harm, which a non-practicing patentee generally can’t show because it doesn’t exist.

    Refrain from categorizing something as “severe” when that something is the best approximation of the actual right.

    That’s exactly how the law characterizes it. When it comes to remedies, the law doesn’t care what is the best approximation of the actual right. That’s why you pretty much never get an injunction in an action for breach of contract, for example. You get however much money will make you whole, even when it would be perfectly possible for the court to order specific performance of the contract, because even equity doesn’t issue injunctions as a matter of course.

    That’s OK – I get a lot of that from people who don’t know what they are talking about.

    Ever wonder why there are so many of them? Law professors, judges, and the like, I’ll wager. It’s probably because everyone other than you has got the law wrong in the exact same way. There’s no other plausible explanation.

  83. Yes, equity makes the victim whole” – good you are starting to get the basics.

    Equity does not take from the defendant more than what is required to make the victim whole” – now apply this in the patent context – the defendant does not “have” what it is illegal for him to have. You are not “taking” anything “from the defendant” to make the victim whole by the best permissible remedy.

    That’s exactly how the law characterizes it. ” – Stop stating the law out of context. The “severe” pertains to realms of law and conditions in which injunction does not correlate as a remedy with the right transgressed. Clearly, the basic right of patent places the patent in a different category. Once you understand patent law you will understand that you are filtering your knowledge of equity. The epiphany awaits you.

    Ever wonder why there are so many of them? – Stop making false assumptions and trying to twist my words – my statement of getting that a lot from people who don’t know what they are talking about is not putty in your hands to mangle with your poor attempt to link to “so many of them”. Keep it real, my friend.

  84. @Blind Dogma
    If you want to redebate the other thread, post it in the other thread, but you nailing me depends on the position you claimed that I take being the one that I held. If I didn’t hold that position, you didn’t nail me. I never gave any evidence that I held that position. I have presented possible alternative positions that I may or may not take that mean you are wrong. Quit assuming you know my position, because I don’t hold the one you thought I did.

    And as for me not seeing, humans are either machines or they aren’t. You haven’t weighed in on it because the only positions you can take are my point being valid or you denying what science conclusively tells us by citing an interpretation of patent law without any precedent that I’m aware of.

  85. the defendant does not “have” what it is illegal for him to have.

    The “severe” pertains to realms of law and conditions in which injunction does not correlate as a remedy with the right transgressed. Clearly, the basic right of patent places the patent in a different category.

    Sure he does. If he didn’t have it, you wouldn’t have been suing him in the first place.

    Supposing someone is contractually obligated to deliver to you two truckloads of gravel. He didn’t do it. The gravel is still in two trucks parked in his lot. Legally, he has an obligation to deliver that to you, and you have a right to have it delivered. You bought it fair and square, and you have an actionable breach of a valid contract.

    Will the court require the defendant by injunction to actually deliver those two truckloads of gravel? No. Even though that would be the closest thing to your actual right. Even though it is “illegal” (in the same sense that patent infringement is “illegal”) for the defendant to retain possession. What will the court do? It will order the defendant to either refund your money, or pay you the profit you would have made on re-selling the gravel, or reimburse you for the cost of replacing the gravel from another source. And why is that? Because you don’t get an injunction merely on the basis that an injunction is the closest thing to your right. You only get an injunction if you can show irreparable harm. You have to show that in some way that those two particular truckloads of gravel are worth more to you than any conceivable amount of money, which is not easy to do.

    Patent rights are no more fundamental than rights under a contract, or any other cause of action. You win on the merits by showing a right and a violation of that right, but you only get paid if you can show damages. Okay, patent infringement is provided by statute, but even that statute doesn’t give you any more entitlement to an injunction than you’d have at common law. You still have to satisfy all the requirements of equity.

    Equity doesn’t like injunctions. Injunctions are a remedy of last resort.

  86. Equity doesn’t like injunctions. Injunctions are a remedy of last resort.

    Therein lies your filter. Epiphany awaits.

  87. Bobby,

    humans are either machines or they aren’t. You haven’t weighed in on it

    But I did weigh in on it – I showed you the letter of the law. I asked you to square your own argument with the actual law. You apparently want me to comment on your argument. I merely asked you to fix the holes in your argument first. That’s when you started squirming again.

  88. @Blind Dogma
    You showed that machines are considered patentable subject matter. Had you cited a rejection of a human patent on account of humans not being machines, then you would have evidence that somebody in the legal system considers humans to not be machines, but that wouldn’t even be the letter of the law, but rather someone’s interpretation of the law. You haven’t even provided that.

  89. You haven’t even provided that.

    You haven’t shown that I need to provide that. You still have to square your argument with the given law. You still haven’t done that.

  90. There is no conflict until someone has a failed attempt at getting a patent on a human, and it’s only a conflict if the reason for rejection is because ‘a human isn’t a machine.’ Even then, it’s not a conflict with the law, but a conflict between science and an interpretation of the law, and this interpretation could be overruled. Even if it were to make it to SCOTUS with that interpretation, science trumps law. However, all you have actually presented is that machines are patentable and the idea that humans are machines could possibly cause some conflict with the law, but probably wouldn’t, since there are tons of valid criteria to reject a human patent on.

  91. There is no conflict until

    WRONG – try again.

  92. Okay, than explain the conflict, since you’ve only implied what you meant, leaving me to interpret. What exactly is the conflict with ‘humans are machines’ with 101?

  93. Bobby,

    Have you learned what the Socratic Method is?

  94. I am somewhat familiar with it, but the only way I’m going to understand the conflict (and thus be able to engage in fruitful debate) is if you tell me what the conflict is. I’ve already addressed what I think the conflict is, but apparently we aren’t on the same page, so just clearly state the conflict.

  95. And I suppose the line of logic you want me to follow to realize the ‘error of my ways’ is this: Machines are patentable. Humans are not patentable (although for all I know, the USPTO could probably be tricked into granting such a patent). Therefore, humans are not machines.

    However, that only applies if humans are not patentable, and not patentable specifically because they are not machines. Even just within 101, there are serious problems with humans not being new or really invented or discovered, making it a good chance that they wouldn’t be patent eligible on those grounds, not to mention quite a few other problems which have more validity than a false claim that humans aren’t machines.

  96. but the only way I’m going to understand the conflict

    Thus you show that familiarity in no way correlates with understanding.

    Try again – this time in a directive – Learn the Socratic Method (or at least learn why it is the method used to teach law for the last, oh, 2,600 years or so).

    Do not skip steps – do not attempt to guess the line of logic – you have no clue of where you are going – why are you in such a hurry to get there?

  97. I understand the Socratic method. I was hurried because you don’t get to a point and had already suggested victory. I’ll attempt to be patient this time. Yes, 101 says what you says it does. Now, proceed in ‘showing me reality’, so I can proceed in showing you that your perception of reality is wrong.

  98. Slightly modified, but perhaps fitting here:

    Wisdom is not a destination, it is a journey.

  99. Interesting story from IP Daily News:

    General Release of Legal Claims in Settlement Agreement Did Not Bar Patent Invalidity and Unenforceability Claims — Baseload Energy, Inc. v. Roberts 2010-1053 — On September 9 in an opinion by Judge Dyk, the Federal Circuit reversed a district court decision that Baseload’s patent invalidity and unenforceability claims against Roberts were barred by a settlement agreement. The patent claimed a windmill kite, for capture of energy from high-altitude winds. In the agreement the parties released each other from claims arising from “causes of action of every kind and nature.” This general provision did not prohibit Baseload’s patent suit. The court noted that the agreement granted Baseload an option to acquire a non-exclusive license, which would have been unnecessary if all patent claims had been released.

    This speaks to treating patent claims differently than simple contract claims.

    Listening is, of course, optional.

  100. Bobby,

    How does “Now, proceed” betray your claim to “I understand the Socratic method.“?

    The irony, of course, is that you are once again repeating the same type of error – What you say betrays what you say.

  101. Even if I didn’t understand the fine details of the Socratic method, it can still be used on me. However, You have not presented anything complete, I’ve already got a stated position, so the ball is clearly in your court, whether you choose to lead with statements of facts that counter my position or asking questions to guide me (I would say statements of facts are generally better for situations where a response has a good chance of not being timely) .

    I believe these are the premises on the table. Gene said software isn’t a mental process because it runs on machines. I hold this premise to be false because humans are machines and some mental processes run on humans. 101 says what 101 says, with the most important element being that newly invented or discovered machines are patentable subject matter. There is no contradiction with my position yet, but there is a problem with Gene’s. If the conversation were to end here, It seems I have evidence that Gene was wrong.

  102. because humans are machines and some mental processes run on humans

    Bobby,

    Before we play with complex 7-letter words like “machine”, we should practice with simpler words like the 3-letter word, “run”.

    It is apparent from a pedantic point of view that you still have not grasped the idea that a same word (i.e.,”run”) can have many different meanings depending on context.

    For example, one version of “run” can refer to a fast pace of human-only locomotion:
    1. Bobby had to run fast to the bus stop in order to be on time for boarding the school bus.

    A second version of “run” can refer to a leaking or dripping phenomenon:
    2. Bobby’s mascara began to run and get all over his clown costume.

    Yet another version of “run” can refer to a tearing or ripping phenomenon:
    3. A run developed in Bobby’s nylon stocking.

    Still another version of “run” can refer to entering a political contest:
    4. Bobby decided to run for class clown.

    The word run can also refer to execution of a computer program:
    5. Even though the power switch was turned to the OFF position on his computer, Bobby believed his new anti-patent software would still run nonetheless on his transistorized computing machine.

    In some instances the word run implies a liquid rush such as that of a river:
    6. When he was off his medication, strange and hallucinogenic ideas would often run through Bobby’s head.

    In similar fashion, the word “machine” can have many different meanings. For example, one should not operate a power machine tool when under the influence of alcohol. We will leave it as a Socratic exercise for the reader to come up with yet other examples for the word, “machine”. ;-)

  103. Bobby,

    Even if I didn’t understand the fine details of the Socratic method, it can still be used on me. However, You have not presented anything complete

    What do you think you understand of the Socratic method? Do you understand why you keep running yourself in circles?

    whether you choose…statements of facts are generally better for situations where a response has a good chance of not being timely

    What do you think is driving the “timely factor here is? Are we under a court ordered deadline? If you are pressed for time, you better start thinking. You have already shot yourself in both feet – are you going for your knees now?

    Anon – no hints now, you will only slow Bobby down.

  104. @step back
    By run, I mean the execution of a process. It’s perhaps not the best word for this situation, but I got it from Gene. As for machines, I think “a concrete thing, consisting of parts, or of certain devices and combination of devices” would probably suffice for our purposes.

    As for
    @BD
    I think it’s leading a conversation through guided questioning for accepting a series of premises. Are you going to guide me to a point, or are you just going to move the goalposts for victory to me possibly having a flaw in a formal understanding of an inquiry and debate method?

    Also, you claim that i need to square my argument with the letter of the law, but if you’ve presented me anything that shows my argument to conflict with the law, I’ve missed it. 101 doesn’t by itself say anything about the matter of whether or not humans are machines.

    As for the timely factor, you say i’ve shot myself in both feet. Therefore I am. according to you, bleeding profusely. If I’m going to die, understanding your deep understanding of how humans are not machines would at least let me go with some peace. Also, you’ve spent the last few posts not saying anything even remotely related to the conversation at hand, suggesting to me that it is you who has bloody feet.

  105. not saying anything even remotely related to the conversation at hand, suggesting to me that it is you who has bloody feet.

    You still haven’t shown why I need to say anything yet. Your argument has a fatal flaw – you need to find it and fix it before I need bother saying anything. If it appears that I am saying absolutely nothing, you can chalk that up to your great “understanding of the Socratic method. I will continue to let you spin a bit more.

    As for you running out of time – why should that be a concern for me? As I have mentioned, if you are pressed for time, you better start thinking.

    You remind me of a certain black knight, trying to sound threatening, while exclaiming “It’s only a flesh wound.”

  106. I do not see the fatal flaw, given the premises on the table. Please explain it directly or at least give another hint, even if it’s in the form of a question. Otherwise, I will assume that you don’t know of an actual flaw and are trying to convince me I’m wrong because you know you’re wrong. You claim i have a flaw, so the burden of proof is on you to find it.

  107. Merely saying the burden on me does not make it so. That is almost as humorous as your thinking that my responses “won’t be timely“.

    I’ve given you enough hints. So has Step Bank and Anon.

    Review what you know, what you think you know and (form my comments) what you definitely do not know.

    Of course, I could tell you directly, but you are not ready, you are still too close-minded to accept the message and too stubborn to open your eyes.

    No pearls for the swine my friend.

  108. You don’t have an answer. You’re bluffing under the pretense of intellectual superiority. Enough games, put up or shut up.

  109. You don’t have a question. You’re dancing around in your pretense of intelligence. Figure out the Socratic Method already so you can figure out the question in front of you.

    Bobby, seriously, the move is yours and has been yours. You have needed to understand the point that I have already made. You seem to want to wait for something else, but you haven’t finished – I don’t have anything of yours intelligent enough for me to comment upon.

  110. I have a coherent point that directly refutes Gene’s statement. That’s victory for me over unless you have a counterpoint. You haven’t made a point clear to me. Either I need more hints or you don’t have a point. There are quite a few signs pointing to the latter, and arguing about the Socratic method isn’t going to get anywhere.

    “I don’t have anything of yours intelligent enough for me to comment upon.”
    Humans are machines. Humans execute mental processes. Therefore, machines can execute mental processes, and Gene’s statement is wrong.

    I haven’t gotten anything coherent out of you past this besides 101, which doesn’t by itself do anything. You state a conflict in the law, but I don’t see it, probably because there isn’t one. Please state the conflict, and I’ll try my hardest to grasp it. Unless, of course, I guessed it beforehand and refuted it, and you are grasping at straws.

  111. Guys, a reasonable discussion is one thing. This on the other hand is ridiculous. If I was Gene, I’d ban the bunch of you.

    Wayne

  112. Bobby,

    That’s just it – your point is not as coherent as you think and it does not refute Gene’s statement. You keep trying to get something out of me when it is you that you need to get something out of.

    Rather than just telling you why (which with your closed mind, you simply would not agree anyway), I attempted you to lead you to think critically, as lawyers are taught to think. You refused. You were in too much of a hurry to stay still, to stick to your views.

    The argument here between you and I is meaningless. There is no loss in that.

    Your opportunity to learn how to think – now there is a loss.

    You spent more energy arguing about the Socratic Method than most people spend learning and using it. Are your critical thinking skills any better for it? Doubtful. But man o man, that pig-headedness of yours is sure bolstered – you “sure showed me“. You showed me that you would rather refuse to think and be in a hurry to be in a state of perpetual ignorance because of your dogma, than actually learn something about law (which you still know precious little of).

    On top of that, if you want to prance in your false sense of victory, well, show me your dance, and I will show you a fool.

  113. It’s a straightforward logical argument. If the premises of my argument are valid, then Gene is wrong. If one of my premises is invalid, you can show me how it is. The purpose of my argument was to invalidate Gene’s premise that mental processes don’t run on machines, because I found that premise to be invalid. The premise you appear to object to is that ‘humans are machines,’ but I don’t see anything you or I have said that invalidates this. Maybe it’s a failure of me to critically think or catch that vital point you made, or maybe you just didn’t make it clear. If you tell me why, it can at least help the matter. Failing that, you can give more hints.

    And the ‘blind, fool, dogma’ crap is getting old, especially since you have an agenda of your own (to the point of misinterpreting the Constitution on a matter even Gene disagreed with you on, but that’s a different conversation). Insults often come in when you don’t have valid arguments.

  114. Bobby,

    Do you think the Socratic Method gives hints?

    My insults are meant to barb you – obviously effective. What are your insults for?

    The fact that you still think that your position is “a straightforward logical argument means that you still haven’t done your own critical thinking yet.

    But as you seem quite incapable of thinking on your own, here is a hint: Why did Step Back make fun of you? Why did he do it the way that he did?

    I don’t need the answers to these questions, but you do. Feel free to open your eyes at any time.

  115. step back,
    Now that you finally gather what it was really all about…… Layers of Crap. And you must know Bobby can’t be that stupid? He’s playing Possum.

  116. Give a man a fish and he will not be hungry for the day.

    Teach a man to fish and he will not be hungry for a lifetime.

  117. @BD
    Not everything needs to be deep. As for step back, he questioned my use of definitions, which I clarified. If that was the problem, you should have said so from the beginning, since it’s something that’s easy to miss, given that definitions are dependent upon definitions that are dependent upon definitions, and what is ambiguous to one person isn’t ambiguous . And yes, it is a straightforward logical argument. Two premises and a conclusion drawn from them. if there is a problem, it is because one of the premises is invalid. Your ability guide me to an answer isn’t working, so you might as well just spill the beans.

    Also, I’ll throw in another front. The Benson patent was ruled to be mental steps or math by SCOTUS. The patent was to be implemented in software on a digital computer, which is a machine, isn’t it? And mental steps/math are mental processes, right?

    As for the insults, you don’t limit them to me. My ‘insults’ were an attempt to get you to actually return to the argument and maybe get you to cut down on being condescending a little bit. Civil conversation is often more fruitful.

  118. In File (1) Fax of 7/8/96. Page 4 of 10, 6 of 10,7 of 10 are “NOT” from the same fax machine. Why pray tell? Elementary my dear Watson. The real pages were replaced with 4,6,and 10. Want a copy step back. I think it’s time to step up step back. I want answers. If you think you are going to control me through another? Maybe you need to understand I am the Plaintiff in this RICO mess.
    Claim 1 in the second is the only claim that is relative to what should have been in the First. And by design that does nothing to weaken the strength of my 1st Blue eyed baby. That is why they did what they did. and why they continued to argue Copyright. How many threads tried to get me to jump on that wagon. I have been pulled onto so many Wagons, I feel like a twenty mule team . Rollin, rollin ,rollin ,keep those Doggies rollin Rawhide.

  119. Sarah,

    Pull..lease stay away from that Kool Aid punch bowl. BD must have spiked it with something or other. You saw what happened to poor Bobby after he took a couple of sips. A word to the wise is sufficient.

    Also, try to avoid too much caffeine:
    http://news.blogs.cnn.com/2010/09/20/murder-defense-too-much-caffeine/?hpt=T2

  120. Okay so I drink too much Coffee. But now that I am rid of winking and blinking, that still doesn’t change the fact that some people just helped them over and over again along the way. Their nose was disjointed and where it should not have been. So what happens there? Love fest?
    And what I filed a the Copyright Office has been so let’s say, mutated. Then where is that.Felony Crime or Copyright Crime? Or am I supposed to just kiss the 15 years away, What bucket does the pain go in? What Bucket does the waste go in? What bucket does all the things i could have done with my life instead of being tied in legal chains go in? Does anyone think that every time i was tied up, that my Psyche wasn’t just a little more battered than the previous tie up? How about the things I invented years ago, that are just now out there. not all mind you but a few.
    Not that i don’t appreciate the freedom, I do. But I never assigned my Patent(s) to anyone.. How can all this have happened? It couldn’t have if the Rug (Constitution) I was standing on wasn’t pulled out from under me. Imagine being told I had no Civil Rights? And for sure I didn’t.

  121. Let’s be precise about what software patents are patenting; they are patenting an effect, and end. Yes, it’s achieved through certain code, but the code is not the boundary of the patent nor is the machine running the code the boundary of the patent.

    This is why you can’t program around software patents, what they cover is something more abstract than the execution of software on a machine. Examples on demand.

    Therefore any defense of software patents based on the assertion that it is 101 because it’s implemented on or in a machine (or could be) is self-contradictory. You can’t assert that the machine (abstractly considered) is what’s being patented. If it was, it would be possible to write another machine (again, abstractly considered) to do the same thing differently, i.e. write a software program that does the same thing using original code.

    So it actually has broader scope than physical machine patents. In fact, what is being patented is indeed an abstract state or sequence of events. But this is the definition of an algorithm. So either it’s a machine that’s being patented or it’s the algorithm. On the one hand, the claim is being made that it’s equivalent to a machine, but then that same fact is being expressly denied, it’s not just the machine. That is a contradiction.

    This is just one point . An equally important point is that the purpose of patents under United States law, which s what this is all about and nothing more or less philosophical, is to promote the useful arts and sciences. Failing that, no patent is due under U.S. law. So a further legitimate question is do software patents promote the useful arts and sciences or do they have no effect or do they retard those same things.

    The answer to that question cannot be assumed. Clearly, software professionals are , buy the numbers, solidly against software patents . This is significant. We tread on very unfirm ground when we start to suppose we know better than the professionals who constitute that profession what is good for that profession.

    Patents must serve the purpose they were created for. We forget that the patent system is utilitarian and not ideological at the peril of ending up on the wrong side of a very expensive argument. The fact tat software patents were not a factor when the major advances of computers were being made is also telling. I’m sure you’re familiar with the concept of an existence proof. We can argue all day about Unicorns, but if one happens by, we are obliged to stop arguing. So also the advancement of software without the incentive of patents. We already know what would happen if patents were removed in the US- innovation would continue on at the break neck speed we witnessed last century.

    I like patents and I like the patent system, but at the end of the day it’s a tool used by society to advance technology, not a right and certainly not an independent thing with a rights and a life of its own, not that anyone has asserted that it is. To just a causal observer, it appears to me that software patents are bad law and the maximalist position will prove to be untenable.

    cheers.

  122. Although there has been a lot of back-and-forth here without any real resolve. A bunch of “He said…” “She said…” bull$#!t.

    Here’s what I feel the whole argument boils down to:
    1) Software is a process, a series of logical steps, that transform a physical memory/computer monitor/speakers or other interface that humans interact with from one state to another that is beneficial for man.
    2) Congress and the constitution has guaranteed rights to protect a process if that process is new, novel, non-obvious and described in such a way that it can be repeated by one of ordinary skill in the art, using tools known to one of ordinary skill in the art, and the specification of the patent application.
    3) Software programmers feel that software is an etherial ever progessing front that belongs to everyone, that should be shared, and not used for gain by any one corporation or individual (or that copyright is sufficient protection).
    4) IBM, Microsoft, Apple, and other giants have tied up the patent system filing hundreds of patents every day without much innovation in 99.99999% of their patents. IBM, Microsoft, Apple and other giants give a crap about individual rights and rail against the same patent system they are abusing. They cry when they get caught stealing an idea and have to pay (i4i v Microsoft) and yet software programmers support Microsoft in this case????
    5) The current problem with patent is a lot of crap patents are allowed because there is no reliable database of existing software to compare new patents to. IBM, Microsoft, Apple, etc. all have internal databases, but that is not public knowledge. What is needed in the art is a reliable and dated system of cataloging software for the patent office to compare new patents against to make sure they generate a novel invention.

    If you understand both software and patents, you would understand that once a patent issues, if the scope is proper, it should be easy to design around. That is why software patent practitioners always try for overly-broad claims that should not be allowed, they do not want you to design around them. Now I digress…

    The small programmer should support a good patent system that only allows novel patents. One that would not allow some of the crappy patents that are allowed today. The problem is not software patents, but the overwhelmed patent office with a lack of reliable software databases. Software needs a software database as good as the chemical database CAS. One that is annotated and describes all software in a simplified and easy way to compare. Additionally, you think something as automated as software would have an automated method of searching an comparing software methods??? Just saying.

    Two simple solutions, unfortunately, IBM, Microsoft, Apple are not going to support these systems, they would block their lame patent applications.