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Software, Silicon Valley and Computer Programmers – Part 2 with Bob Zeidman


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: August 24, 2014 @ 9:16 am
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Software expert Bob Zeidman

Recently I had the opportunity to interview Bob Zeidman, the president and founder of Zeidman Consulting, who is also the president and founder of Software Analysis and Forensic Engineering Corporation, Zeidman is an software expert. In fact, in addition to consulting with lawyers and technology companies, he is an testifying and consulting expert witness. The premise of our conversation was the upheaval in the patent industry thanks to the Supreme Court’s decision in Alice v. CLS Bank. In part 1 of our conversation we discussed the decision and ways that attorneys can build a specification to satisfy the Alice standard. In part 2 of our 3 part discussion, which appears below, we wrap up our discussion of the Alice decision and dive into a discussion about the fact that many in the computer science world don’t believe what they do to be particularly innovative or even special.

QUINN: And then there’s always the fear that if you put in code then you’re gonna be limiting yourself. I don’t think that’s really a justifiable fear as long as it’s put in properly as illustrative instead of limiting. You know, I mean the folks in the chemical world, they do this all the time. They have example after example after example after example, which is a great way to disclose what it is that you have, what it is that you’ve tried, what it is that you know that works.

ZEIDMAN: Exactly. It seems like if there is some ambiguity in the claims then you would go back to the specification to see if the code there could clarify the claims.

QUINN: I think it certain does. I think it also again would become much harder to say it’s an abstract idea. Because up until this point the common belief was that software should be patentable when you’re tying it in a meaningful way to a machine, i.e., a computer of some sort, whether it’s a PDA or an iPad or a desktop computer. If you tie it to a machine then it’s no longer an abstract idea because an abstract idea is one that’s just out there that’s untethered.

ZEIDMAN: Right.

QUINN: But the way that we had always thought we were getting around that is to make sure it is tethered, make sure the steps require it to be done on a computer because then that made it more like Diamond v. Diehr where they said the Arrhenius equation is not what you’re patenting, what you’re patenting is a single use of the Arrhenius equation. Therefore, you’re not trying to patent an abstract idea because it is fixed. But that same logic doesn’t seem to be getting applied now and I don’t know how to get that across to these judges.

ZEIDMAN: Well, also one thing that confuses me in the ruling, and I think in some other rulings, too, is that the judges are talking about 101 patentability but then they keep saying something like if the patent’s not obvious then it doesn’t pass 101. I thought nonobvious had a different basis for rejection. And they also seem to be saying that the invention can be abstract but if you add something unique to it then it becomes patentable. Which to me seems to say that you can still patent something abstract as long as it’s unique. I mean this is confusing in the ruling to me.

QUINN: You’re not the only one that points to that. And this is something that this Court started back a couple years ago in the Mayo v. Prometheus case where they started trying to drive all of 102, 103, and 112 inquiries into 101. Because they don’t really seem to want to do the heavy lifting of deciding whether it is this new, non-obvious, and adequately described. And in Mayo Justice Breyer writing for the courts said that they declined the invitation of the government to apply the various sections of the statute. And I’ve been saying this ever since, it’s not an invitation, that’s what the statute requires. Novelty and non-obviousness are not a part of 101. They have a separate part in the statute. And the real danger is that when you try and put this all into 101 there’s none of the safeguard of 103 obviousness are present. There’s no question about secondary considerations if it’s all in 101 because you never got to the 103 structured analysis. And I’m not sure how to make these things patent eligible. I mean I have ideas but what do you think? If I were to come to you and say, what kind of information should I be trying to get from my inventors to include, what would you say?

ZEIDMAN: Yeah, that’s interesting.   What I generally say is to go to the inventors and ask them to describe the most difficult part. I don’t want them trying to figure out any of these 101, 102, 103 issues, any of these issues. I just say tell me what is the most inventive, the most difficult thing you did. I don’t always say “inventive” because a lot of programmers don’t think what they do is inventive. And this brings me to another point. There is so much information coming out of academia in particular that says, oh, programming is more like a trade. Just anybody can do it. The tools are so great, we’ll give you a tool you can just sit down and program. It’s not inventive. And so if you ask a programmer what have you done that’s innovative and inventive they’ll say nothing. And so you’ve gotta say, what was the hardest problem for you to solve. And then can say, oh, this thing was really hard. And then I say, well, describe that to me. And then I figure out how to put that into a patent.

QUINN: Right. That’s an interesting way of doing it. So often this stuff is just conveyed as being simplistic. And anything that’s simplistic is going send off alarm bells when a judge starts to read it because that’s not what the patent system is supposed to be about.





ZEIDMAN: Right. You know, there was a really eye-opening experience for me when I debated a Berkeley professor a few years ago at the Computer History Museum about software patents. Should software be patentable? And I thought I had come up with this great idea that was going to basically get the audience to come over to my side in the first five, ten minutes of the debate. What I did is I asked how many in the audience–there were about 300 people including Steve Wozniak, by the way–and I asked how many people have written software? I think every hand in the audience went up. And then I said okay now put your hand down if you think that pretty much anybody could write software. And you know almost every hand in the audience went down.

QUINN: Wow.

ZEIDMAN: What I expected– I thought these people must respect that what they do requires at least a four year education plus experience. All of us have complained about programmers who don’t know what they’re doing. All of us had assignments where we couldn’t figure it out–it took us a long time–and we were really proud when we figured it out. But somehow I think they’ve been brainwashed to think that what they do is just not that big a deal.

QUINN: That’s really interesting because that seems to permeate this Supreme Court’s oral argument consideration in the Alice case where very early on Justice Kennedy asked why this was really an invention because you would just need to describe it to any second year engineering student and they could just program it. It suggests that Justice Kennedy isn’t all that familiar with most engineering curriculums, or that he thinks that with minimal programming training one can simply program anything. One, that is simply not true. And, two, I don’t understand why anybody would ever believe it could be true. I mean, we are reminded practically every time we start our desktops that software doesn’t work the way it’s supposed to.

ZEIDMAN: Right.

QUINN: Software crashes. We have critical updates that must be installed our we run the risk of our system crashing, unspecified destruction, and/or our privacy lost because the original coding is vulnerable to exploit. And this is for almost every piece of software we run. It strikes me as just totally bizarre that there’s this concept that anybody can do this. If anybody can do it, then why isn’t it much better than what it already is? If software is so easy why doesn’t it work as advertised?

ZEIDMAN: See, and I think it’s that this technology advancement that I talked about earlier is making us think perhaps in the wrong way. You know, if you had to build an engine, a steam engine, combustion engine even today, I mean today it’s relatively easy but years ago the first one was very, very hard. You would spend years understanding the mechanics of it, the physics of it, doing experimentation and then physically you had to go out and get tools to put this thing together before you knew if it worked.   And software and the software tools have made this much easier to skip all the physical effort but not the mental effort. But people think that well if I’m not sweating, if I’m not building something physical and taking a long time then it must not be innovative.   And even the people who are doing it–that’s the problem I fight–the people who are doing it don’t think that what they’re doing is innovative.

QUINN: I get what you’re saying. I think I would characterize it a little bit differently. In my experience dealing with inventors, what I see is when someone has come up with something complex and cool they are much less likely to fully appreciate just how innovative and important it is. And so on the other end you have the person who just came up with this idea last night while they were watching TV and now wants to get rich quick without any work. This latter group thinks that what they have thought up is the greatest thing ever and nobody could ever have thought of it, unless of course they stole the idea. This has always struck me as odd and backwards. I think more problematic, when you asked them how many of you think anybody can do this, is the suggestion that there is this belief that software is so ubiquitous that everybody could do it.   And since everybody can do it then there shouldn’t be a patent given. That is just fundamentally wrong.

ZEIDMAN: Yeah. And you know I think you’re absolutely right about that. And one thing that I think happens at least here in Silicon Valley where I am, maybe in other places, too, these software people are surrounded by other software people and they don’t realize how unique their talent is. I just thought back on my first patent, and I consider myself a really good programmer. And yet I had to be talked into my first patent by friends of mine who said you should patent this and for almost a year after I made it public I kept saying it’s not that big a deal. I just thought of it, you know, one day and then I took a few months to implement it, and I figured anybody could have done it. That was my attitude, too. But what I didn’t consider was that inspiration about how to implement it. I didn’t realize that until a company came to me and said they wanted to see my software. I showed it to them and they said, oh, we’re gonna do the same thing so we don’t need your software. And then about a year later they contacted me and they said, hey we’d like to buy that software from you. I ended up patenting it a year minus one day from when I made that public presentation about it to that company. I filed a provisional patent because it was a year minus three days when I finally decided to go to an attorney and ask, is this patentable? And he said sure it is. And I said, oh, well, okay, how do we patent it? And when he found out the date of that presentation, we worked over the weekend to file a provisional patent.

But the point is: here I am someone who knows a lot more about patents than most people and I had to be talked into my first patent. Which by the way became pretty valuable.

QUINN: Yeah, yeah, and you hear that story a lot. And I think maybe it’s more normal than we think it is. People don’t think what they’ve come up with isn’t all that special because if they came up with then why couldn’t others come up with it. But still, I just don’t understand the thought process. I don’t think there would be this concept if you came up with this advanced aerospace engineering innovation. Like just anybody could do that! You know, it would take somebody with a certain amount of physics knowledge, a certain amount of aerodynamics knowledge, and you wouldn’t just think that a teenager could do that like Justice Kennedy suggested, which is what he was saying.

ZEIDMAN: Yes.

QUINN: So there seems to be a disconnect and for the life of me I don’t understand why. I have thought for a long time that if automobile sales were like software sales, nobody would want to buy a car. Everybody would be up in arms – What do you mean every week I have to come back in and get you to fix something? So you sold me a defective product to start with.

ZEIDMAN: You know I think part of it may be the inefficiency of the patent office. Did you read, by the way, about that inspector general report that’s been in the news the last week or so?

QUINN: Yes.

ZEIDMAN: And that examiners are not really doing much work, staying at home and getting paid?

QUINN: Yes, I saw that. $5 million over a period of years is real money, that’s for sure, and it shouldn’t have happened, that’s definitely for sure, but the Patent Office budget is over $2 billion a year so we’re talking about a very small percentage. So to some extent it’s almost surprising that there wasn’t a whole lot more wasted really. So many of the Patent Office’s employees don’t work at the office; they work from home. And I think that’s a real problem that goes way beyond the fact that we paid $5 million for work that wasn’t done. I’m not trying to justify or excuse paying bonuses when work isn’t being done, but I think there is a far more concerning systemic problem.

The problem is the patent examiners are not being properly mentored because the people who are in the office are largely junior people and the people who have the institutional knowledge are largely at home. That’s not to say that the Patent Office doesn’t provide training, but there is a difference between training and mentoring. You don’t always go to your boss or the person who’s training you with a question, sometimes you go to somebody who’s maybe got a little bit more experience than you and given the way the Patent Office is set up that’s just not possible. So we have this incredibly dispersed work force and I think it leads to these kinds of problems. I think it also leads to disproportionate treatment between applications and applicants. In some areas it’s just virtually impossible to get a software patent out of the Office. And they issued a patent a couple weeks ago that is so laughably ridiculous it defies all explanation. The EFF has written about it. I’m going to write about it here on IPWatchdog.com as well. It makes you scratch your head. It’s how can that get issued?

ZEIDMAN: Yes, that’s frustrating to me. I see two sides of that issue. One is that a lot of engineers will look at the title of the patent, which doesn’t tell you very much, and say it’s a stupid patent without actually reading it or understanding the claims. I’ve tried to educate them. I wish there was more education in universities about how to read and understand a patent. I try to explain that you can’t read the title of an engineering book and know what the book is about. But that’s what engineers do with patents. But then there are the occasional–maybe not so occasional–patents, particularly software patents, but other ones too that are just issued and yeah, you scratch your head and say why was this issued?

QUINN: Right. I don’t get what’s going on. And it’s not to say that this or any other ridiculous software patents if challenged wouldn’t fall under their own weight. I think they would. But why are we even issuing them in the first place, number one? And then number two—there is extreme damage done when an examiner will issue a stupid ridiculous software patent. Because then the people who don’t want these things to be patent eligible will say, see, see we told you this is what the Patent Office is putting out. And how can you argue that? I mean you can’t. They’re coming up with an example of something that clearly on its face should never have issued. So people start thinking that’s what’s going on across the board. And it’s not. But the perception becomes reality.

ZEIDMAN: That is a problem. I don’t know what to do about it. I think maybe like I said better education about patents. It would be great if engineers in school took classes about patents from somebody who appreciated patents. As you and I have talked before, there’s just a lot of people in academia, especially engineers and lawyers, you know, engineering and law professors who just don’t like patents.

QUINN: That’s right. And they’re told that patents stop progress, they get in the way of innovation and all that other nonsense. The example I always love to use, and these two things really disprove that if you have an objective mind. One is that it certainly hasn’t stopped innovation in the smartphone industry. Smartphones are only about seven years old. They keep getting smaller, thinner, faster. The apps get better. We can do more and more on them. And after about 18 months you have to have the next version. Why? Because it is so much better. So patents haven’t stopped that innovation at all. It’s growing extremely fast. And then two, if patents got in the way of innovation you would expect those countries that have strong patent systems to have no innovation and those countries that have no patent systems to have runaway crazy innovation. And what you see is the exact opposite. Countries without a patent system have no innovation and largely have no economy. And countries with strong patent systems have tremendous innovation and a tremendously functioning economy. Of course, the way that the detractors get around that is by yelling “correlation is not causation.” And what that basically means is I know you have all the facts but I chose to ignore all of them and the best I can come up with is a cliché. Seriously, they have no evidence.

ZEIDMAN: Right, exactly. I’ve been getting into debates with people online. In this one particular forum people were really being nasty to me.   And finally somebody had an intelligent argument that I disagreed with but I thanked him. I said now we can debate. You know, you and I disagree but it’s not because I’m a jerk who wants to kill innovation in the United States. So we started, the debate became more respectful when we were discussing facts. Although some people still kept jumping in. I got a bunch of arguments about we need to harmonize with Europe, that Europe has a better system than we do. And I said well why is it there’s so many smart people in Europe and yet very few startups? And when they do want to start a company they come here?

QUINN: Right.

ZEIDMAN: And of course I got this whole thing about well, it’s not the patents, it’s this atmosphere of innovation that we have here. Well, what is that atmosphere of innovation? You can call it some abstract principle, you know, “atmosphere of innovation,” or you can look at what we’ve done in the United States to make that abstract principle into something concrete, which is strong intellectual property laws, and everything I think flows from that. The ability to get capital is partly—not completely but partly—because you can protect your intellectual property here.

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Posted in: Bob Zeidman, Gene Quinn, Guest Contributors, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, Technology & Innovation

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.

 

23 comments
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  1. In the Alice v CLS Bank decision the U.S. Supreme Court said that writing an abstract idea into software does not make that idea patentable. This decision invalidates a lot of software patents but left open the question as to whether there exists classes of software which is in fact patentable. Now Gene Quinn is looking for classes of software that is patentable.

    Rather than destroying software patents by an inductive process of knocking out new classes of software as lawyers dream them up I propose a deductive method to abolish all software patents. Alan Turing was a mathematics professor at Oxford University. During the 1930’s he defined a new mathematical system (which is a routine thing to do in advanced mathematics). His new mathematical system was based on operators which can be executed by a machine. Turing proved that his instruction set was a viable and logically complete mathematical system. Since then the term for such a mathematical system is “Turing complete”. During WWII the British government drafted their best mathematicians to work on breaking the German code. Alan Turing’s solution to the problem was to invent the computer.

    All modern computers are Turing complete. This is the sort of thing that a candidate for a masters degree in mathematics will write a thesis on a newly released computer instruction set. Therefore any computer instruction set is a mathematical system.

    An algorithm is a set of instructions. An algorithm which consists of mathematical steps is mathematics. All computer programs are written as algorithms. Therefore computer programs are mathematics and are not patentable. In Gottschalk v. Benson the U.S. Supreme Court ruled that algorithms are not patentable.

    Therefore no software is patentable because all software consists of mathematical algorithms written within a valid mathematical system and neither mathematics nor mathematical algorithms are patentable.

    —————————————-
    Steve Stites

  2. To some extent modern computing has made programming very accessible, so there is some truth to the fact that someone of average ability can program. Furthermore, much of routine programming involves automating processes which hitherto have been done manually, which is also conceptually straightforward for one skilled in the art, and not likely to be patentable. But it is also precisely the democratization of computing that has put the power into the hands of individual developers that was once reserved for large companies. The difference being that large companies have the financial sophistication to understand the importance of IP, whereas the creative individual programmer who loves their craft and would rather code than sleep does not appreciate the strength of their own position. They live far below their privileges, aspiring primarily for the professional respect of their peers, in the naive hope that a large corporation will take note and reward them for it. It generally takes an entrepreneurial mentor to help them see their true potential. Although sadly such mentors are rare, and the entrepreneurial instinct is generally to be exploitative of technical talent.

  3. Steve, the only reason pure math is not patentable is because it fails the utility requirement. A disembodied abstract idea is not useful in and of itself. But when applied, as in the case of computer software, it can be patentable if it also meets the requirements of novelty, non-obviousness, and enablement. I have both a math degree and a computer engineering degree, and they are not the same. Math is an abstract art form, whereas engineering, computer or otherwise, simply uses math as a tool.

  4. One key question is how you apply the math. For example, what if your brilliant new algorithm assesses actuarial risk better than any has ever done before. The algorithm, thus applied, is new, non-obvious and highly useful. But nevertheless, you do the risk calculation, the “process”, on a standard computer, not a new one.

    So the step forward is in math, not in technology. Inventors who invent in a field that is math and not in technology: should their advances be patentable? Some would say No. Not even if their advances win the Fields Medal.

  5. Implicit in your post MaxDrei is the confusion as to whether business methods are patent eligible.

    Are you trying to be “provoking” again?

  6. Bob,

    Not only does it take many years of study and “practice: to become a decent computer technologist, it also takes many years of study and “practice: to become a decent patent practitioner, to become a competent medical services provider (i.e. doctor), etc.

    This notion of just “say it” and “just do it” is complete and utterly pathetic magical thinking.

    The most magical of thinkers are the nine robed ones who believe that in just a few hours they can be tutored by ingenious lawyers on two sides of a commercial dispute and by this the nine clerics of the Supreme Counsel Court can become experts in what a “generic computer” is is, what abstraction-ism is is and what corporate personhood is is. IS IS = ISIS. That is our new reality. We have become the barbarians.

  7. Gene, release from spam jail please.

  8. “Therefore no software is patentable because all software consists of mathematical algorithms written within a valid mathematical system and neither mathematics nor mathematical algorithms are patentable.”

    Steve,

    You’re misinterpreting what Benson held. Benson did not say that computer programs are unpatentable. (Many would also say that Our Judicial Olympus’ view of the computer registers as being patent-ineligible is nonsensical.) Software, in essence, is a computer program. And others would also say hardware = firmware = software, so what’s the difference between a computer system that operates (due to hardwiring) versus a computer system that operates because of the software loaded on it?

  9. Steve-

    Software is NOT math. It never has been and it never will be math. Software directs a machine to accomplish a task. Math is descriptive, not directive.

    If you choose to continue to state that software is math you will be banned. We are not going to go down that intellectually dishonest path yet again.

    -Gene

  10. I am replying to EG

    “You’re misinterpreting what Benson held. Benson did not say that computer programs are unpatentable. (Many would also say that Our Judicial Olympus’ view of the computer registers as being patent-ineligible is nonsensical.) Software, in essence, is a computer program. And others would also say hardware = firmware = software, so what’s the difference between a computer system that operates (due to hardwiring) versus a computer system that operates because of the software loaded on it?”

    Benson held that algorithms are not patentable. I do not claim that Benson by itself says that software is not patentable.

    The difference between a hard wired solution and a software solution is that the hard wired solution is immutably fixed and the software solution is infinitely malleable. Thus a hard wired payroll program is obsolete within a year due to changes in tax law, union contracts, etc. while a software payroll program is usable as long as periodic changes are made to it. Thus hard wired and software programs are not equivalent.

    ———————————-
    Steve Stites

  11. I am replying to Gene Quinn:

    “If you choose to continue to state that software is math you will be banned. We are not going to go down that intellectually dishonest path yet again.”

    You can throw me off your site as you have done before. But in any case you will see my arguments in court as you have done before. You are better off to see my arguments now to give you time to prepare a rebuttal.

    ————————————–
    Steve Stites

  12. This is a reply to Ron Hilt:

    “I have both a math degree and a computer engineering degree, and they are not the same. Math is an abstract art form, whereas engineering, computer or otherwise, simply uses math as a tool.”

    I have a degree in mathematics and my computer experience goes back to 1967 when my first real job was working in IBM’s R&D. The fact that engineering, computer or otherwise, simply uses math as a tool does not make math patentable.

    ——————————–
    Steve Stites

  13. Steve,

    You should consider that your view as stated cannot be squared with the Benson case. The Court explicitly stated that your view was not a view that could be culled from the decision. A rather important paragraph in the Benson case is: “It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a “different state or thing.” We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.” 409 U.S. 63 at 71.

    Further, you seem to want to make a distinction that has no legal difference with the notion of “malleability.” I do not think that you are properly understanding the legal context of equivalence, as you exhibit an over-reliance on the benefit that software provides (which in fact, strengthens the argument for patent protection).

    Respectfully Steve, you are yet another person with only one foot in the arena of understanding. You wish to opine on legal matters without understanding the legal contexts. You wish speak to people in a forum that have both technical and legal knowledge and need to understand that your view is neither a new view, nor a correct one. Would you be willing to someone telling you something when you see that that person does not understand what they are talking about? Gene’s threat of banishment may seem severe to you, but realize that the argument you are putting forth has been quashed repeatedly and holds no merit.

    Your desire over reaches reality. What you want does not jibe with what the law is.

    A further probe of your understanding of intellectual protection, if you do not mind, Steve: how do you feel about copyright protection? I ask, as you may be unaware that the “software = math” argument – if for argument’s sake is agreed to, nullifies the possibility of copyright protection as well. You have stated that you do not want any patent protection for software. Do you not want any intellectual property protection at all?

  14. Steve, I did not say math is patentable. With your academic background, surely you understand that software is not math, any more than mechanical engineering is math. Engineering is highly mathematical, even fundamentally mathematical, but it is not math. Rather, it applies math as a tool to produce useful results.

    Max, there is no problem with the novel element(s) of an invention being mathematical in nature. But the patent only protects the useful embodiment(s) of that innovation, not the underlying math.

    The day the Supreme Court unequivocally states that mathematically-based novel elements alone are not enough to constitute patentable subject matter, will be the end of the patent system, computer-based or otherwise. That would be the inevitable consequence of your arguments. If you believe patents are evil, that is your best argument for destroying them. Just convince 5 Supreme Court justices to go along with your fallacy.

  15. Steve-

    You can argue whenever or wherever you like, but it won’t change the truth that software is NOT math. So if you keep making that argument here you will be banned. I have no tolerance for those who want to get in the way of thoughtful debate with intellectually dishonest positions.

    You say: “hard wired and software programs are not equivalent.”

    That is also simply false. Anything that can be accomplished with software can be accomplished with hardware. That you don’t understand this speaks volumes about your lack of understanding of the fundamentals involved. We have addressed this issue numerous times. I invite you to being informing yourself by reading:

    http://www.ipwatchdog.com/2013/06/09/false-distinctions-between-hardware-and-software-patents-not-the-answer/id=41244/

    You say that you have ” a degree in mathematic…”

    According to the Federal Government you don’t have the requisite scientific training or skill to even qualify to sit for the patent bar exam. Those with mathematic degrees just don’t understand science, and they certainly don’t understand computers. Everything is a math problem to people like you, which is utter asinine. Software drives a system to produce a desired result. Mathematics does no such thing. But I don’t expect someone with a mathematics degree to be able to comprehend innovation, and apparently neither does the Patent Office.

    -Gene

  16. One question that I’ve been kicking around is whether Alice/Digitech will/should lead to the revival of means+function claiming. M+F claims are explicitly limited to the more detailed algorithms in the specification plus equivalents, so they don’t have the same preemption risk that you see with pure functional claiming.

    I think Alice/Digitech represents the death knell for hundreds of thousands of functionally-claimed patents, and the old M+F claiming techniques (albeit with a fairly detailed specification) may be the only real workaround.

  17. Anonymous-

    I’ve thought the same thing myself. I think patent applications moving forward have to have a killer specification. I think at least a series of means plus function claims should be present. I think method claims will only cloud the picture and I would contemplate either not writing in that style and perhaps canceling or disclaiming method claims.

    -Gene

  18. I agree that the presence of method claims is likely a problem. The case law where the courts simple ignore the beauregard and system claims in favor of a method claim analysis and then just wave away the structural limitations in holding every asserted claim ineligible is pretty, well, scary. Unless I missed it, I haven’t seen it happen in the M+F context,

  19. Gene Quinn,

    Whether or not you ban me from the site is irrelevant to me. I am mainly interested in whether the people on this forum can produce any valid counter arguments to my thesis. I am satisfied that you can produce no unanswerable counterargument. Most of your rebuttal is table pounding and character assassination.

    ———————————-
    Steve Stites

  20. Due to the unfair, unreasonable, and intellectually-dishonest view of and treatment of them, I’m done with method claims.

    Instead, my claim preambles from now on will read: “The technological process comprising …” (note how I’m also making technological explicit in order to further strengthen the claims against any 101 attacks).

    With the rest of the claims being jam-packed full of structural, tangible, “physical stuff.”

    And thanks anonymous and Gene — since I’m got a killer specification, it’s time to consider including M + F claims again in its current and future continuations.

  21. Steve-

    Actually, I’ve rebutted your ridiculous position over and over again in article after article. Anyone who believes software is math is simply not being honest. That is not character assassination, it is the truth. It is always funny, however, that people like you who are proved wrong think it is character assassination for me to state the obvious.

    Software is not math. You can deny it all you like, but software directs a machine. Math does not direct a machine. It is really that simple.

    -Gene

  22. Method Claims are Dead-

    Don’t forget, however, that the current Federal Circuit view of method claims as they pertain to software requires 100% of the algorithm to be disclosed. The Federal Circuit interprets method claims very differently in software than with any other type of technology. See:

    http://www.ipwatchdog.com/2012/04/18/a-primer-on-indefiniteness-and-means-plus-function/id=23854/

    http://www.ipwatchdog.com/2012/06/18/building-better-software-patent-applications-embracing-means-plus-function-disclosure-requirements-in-the-algorithm-cases/id=24273/

    -Gene

  23. Steve at 19 regarding your “Thesis” – I am mainly interested in whether the people on this forum can produce any valid counter arguments to my thesis. see my post at 13.

    Your thesis is fatally flawed. Whether or not you want to admit such is up to you.

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