Can I hold on long enough until the madness stops?

By Jeffrey Killian
September 13, 2018

https://depositphotos.com/95584932/stock-photo-padded-cell-and-empty-chair.htmlIf someone told me when starting my career in 1976 that I would discover a process that has been beyond the reach of professionals and experts for over 62 years, I would have laughed.  If the same person also told me that it would be virtually impossible to protect that discovery with a patent in the United States of America, I would have been equally dismayed.  The preceding scenario is exactly what is being experienced by many inventors and me.  I am a common person who caught lightning in a bottle with an invention, only to be frustrated by the patent system in the United States and left wondering can I hold on long enough until the madness stops?

My invention is patent application #14/450,042 and it represents a process that discovers overlooked Social Security Disability Insurance (S.S.D.I.) benefits for adult people with a disability prior to age 22.  Please note that Medicare benefits also become available when eligible for the monthly Social Security Disability Insurance (S.S.D.I.) benefits.  Accordingly, when the Social Security Disability Insurance (S.S.D.I.) benefit is overlooked, so is the Medicare coverage for the person with a disability.

The oversights occur because the eligibility is the working record of the parent of that adult child.  The Social Security Administration cannot simply run the Social Security number of the adult child to successfully determine the Social Security Disability Insurance (S.S.D.I.) benefit.  In addition, the working parent needs to be retired, disabled, or deceased to trigger the benefit for their adult child, and those triggering events cause their own set of problems in the process.

The Social Security Disability Insurance (S.S.D.I.) benefit process is further complicated upon submission of the parent’s own Social Security retirement benefit application, to wit:

  • Unawareness- The retiring working parent fails to name their disabled adult child on the Social Security application. It is beyond the general public’s comprehension that an adult child age 40 could possibly be eligible for Social Security from the parent’s work record.  The child may have never worked and possibly has not been in the parent’s household for over 30 years (institutionalized)
  • Divorce- The working parent divorced both the custodial parent (spouse) and basically divorced the children. The wage earner had no further association with either of them and skips the question regarding adult children
  • Fraud- The working parent intentionally omits the adult child to affect more benefits for other household members. The wage earner’s benefits are never affected but payments to other household members can be reduced up to 50% with additional claimants, hence, the motive to commit fraud and omit the non-household adult child

The professionals at the Social Security Administration, as well as disability attorneys, have been trying to solve the problem of Social Security Disability Insurance (S.S.D.I.) benefit oversights since the inception of the Social Security Disability Insurance program in 1956.  The fact that the solution has eluded trained professionals for decades speaks to the depth of the problem.  The solution is simply not the cross matching of a couple records as over characterized during my patent prosecution.

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Solving the Social Security Disability Insurance (S.S.D.I.) benefit problem ensures that the adult child with a disability gets their rightful benefit as intended by Congress.  The solution also saves both the Federal/State governments substantial Medicaid expense and mitigates overpayments to other household members.  A patent examination needs to be mindful of the consequences revealed by these problems to properly measure the desire to find this solution.  The situation is not just some abstract idea that can be willfully solved by a person’s thought process or the professionals would have easily done the same decades ago.

The person with a disability has less income and less medical treatment choices from these oversights. Those circumstances often lead to lawsuits against the States by the United States Justice Department regarding inappropriate treatment settings, an “unofficial” euphemism for lack of funding caused in part from these oversights.  My State (Ohio) is currently being sued and many other States have entered into an agreement with the Justice Department.

The oversights cause extra Medicaid expense that is absorbed by the Federal and State governments.  The extra expense is substantially more than the rightful payment of the Social Security Disability Insurance and Medicare benefits.

The overpayments to other household members require the Social Security Administration to drastically reduced future benefits and recover perhaps tens of thousands of overpaid dollars representing as little as 3 years of overpayments.  The preceding revelation is quite a shock to people on fixed incomes who made retirement decisions based on erroneous information received from the Social Security Administration that was a by-product of an unintentional oversight.

All the above information was thoroughly explained to the United States Patent and Trademark Office.  Also included in the application process was documentation to support the fact that my invention is novel, non-obvious to skilled people in my profession and represents a whole new approach to solving this oversight problem.  The documents placed into my record are:

  • Independent third-party studies from two accredited universities authored by experts with 25 years and 35 years in the field
  • A Social Security benefit application
  • A Social Security handbook
  • The Medicaid applications from each of the 50 states in our nation

Imagine my shock when the United States Patent and Trademark Office notified me that my application for patent was being rejected on the grounds the process is deemed an abstract idea that is routine, well understood and conventional based on court cases that have nothing to do with my field of technology.  Since none of my patent claims are done by the Social Security Administration or disability attorneys, as proved by the supporting documentation, how can my process be routine, well understood and conventional based on conclusions from other fields of technology?

First and foremost, the United States Patent and Trademark Office regulations are clear that determinations of routine, well understood and conventional are based on my field of technology.  Hard evidence within my field of technology should never be overruled by court cases from other fields of technologies.  All poodles are dogs, but not all dogs are poodles is a good analogy as to why the United States Patent and Trademark Office regulations rightfully emphasize the same field of technology for comparison.

Secondly, the dictionary defines an abstract idea as existing in thought or as an idea but not having a physical or concrete existence.  The abstract idea is the routine benefit processing of the Social Security Disability Insurance (S.S.D.I.) benefit as conceived by Congress.  Correcting oversights made by family members and professionals is not the abstract idea.  Professionals do not go to work with the “alleged” abstract idea of making oversights that cost their employer substantial amounts of money and further cause households financial grief.  Labeling my invention as an abstract idea is not correct, not factual or logical on the surface, professionals do not make mistakes on an intentional or abstract basis.

Thirdly, my patent application was very clear that the discovered process was only addressing the correction of those Social Security Disability Insurance (S.S.D.I.) benefit oversights, not the pre-emption of routine Social Security Disability Insurance (S.S.D.I.) benefit processing per Claim #22, which reads as follows:

The computerized method for determining overlooked eligibility for social security disability insurance (SSDI)/adult child benefits through a computer network in Claim 1, wherein the SSDI adult child benefit eligibility has been overlooked in the parent’s or spouse’s routine social security application process due to inaccurate information, or lack of information during said application process, or the person’s SSDI adult child application was not properly pursued due to parent’s or spouse’s death was overlooked by parties associated with a disabled adult child

My patent examiner refused to acknowledge or address my evidence that was submitted into record proving the process is not routine, well understood or conventional in my field of technology; nor did the patent examiner recognize or acknowledge that the process only addresses the oversights.

I started searching for the real reason why my patent application was rejected since the explanation for rejection did not reconcile with the overwhelming evidence on record and the fact that my process was rectifying a problem in existence since 1956.  It did not take long to discover that the real reason for my rejection is software patents and their anti-patent bias by people of authority, regardless of what is being accomplished by the software process or what the law states verbatim.

This anti-patent bias toward software is illustrated in many ways. The Supreme Court of the United States added the words “abstract” and “significantly more” to 35 U.S. Code § 101 and did not define such terms.  Previously 35 U.S. Code § 101 granted patents in the past and now 35 U.S. Code § 101 has become a provision to deny software patents on a wholesale basis.  The added judicial exceptions were not approved by Congress, the law still reads the same, the added and undefined terms were legislated from the judicial bench.  Something is inherently wrong with this situation from a common person’s viewpoint.

In addition, software patents previously granted are now being squashed via a legal process void of evidence or facts.  The rescinding of patents without fact or evidence got so bad that the Berkheimer appeals court had to remind everyone in 2018 that facts and evidence do matter in a legal setting, an observation a common person like myself would just assume should happen.  Yet, in my patent application, the evidence is still not even acknowledged, addressed or given any weight, equaling a real-life testimony to the Berkheimer court’s point.

Crucial aspects from landmark cases, such as the Alice and Electric Power Group, are not embraced that would help patent software claims.  Both court case decisions stated concrete steps that described a specific way to solve a problem are patentable, unlike situations where a computer was merely used as a tool to perform an existing process.  The fact that my process uses concrete steps to solve a 62-year problem seemed meaningless in my patent prosecution.  It appeared only ways to deny and trivialize my application were important, using bits and pieces from court cases outside my field of technology, which seems like a form of disrespect to the professionals and experts in my field of technology.

Official United States Patent and Trademark Office memorandums from Robert W. Bahr, Deputy Commissioner for Patent Examination Policy were not given consideration in support of my application.  Deputy Commissioner Bahr’s November 2, 2016 memorandum confirmed that  claims describing a specific way to solve a problem are patentable and that evidence/facts do matter per the Berkheimer court (April 19, 2018 memorandum).  These memorandums only seem to serve some kind of “official” purpose in my patent prosecution without any application of their intent.

How bad is the patent situation in the United States?  Is my rejection the rule or the exception?  The answer can be found in the level of evidence to support of my patent application.  How many patent applicants have independent studies from 2 accredited universities to prove their case, not many I suspect?

Going a step further.  How many patent applications have documentation from every one of their competitors or end users proving no one is doing their patent application process, again not many?  I have documents from every State (my competitors/end-users) proving that my invented process was a first ever solution that nobody is doing.

My patent application was rejected with both the 2 university studies and documentation from all my competitors/end users.  If I have no chance to get a patent, neither would other inventors with less evidence.  Software patent applications might as well be declared dead on arrival in this country.  To add insult to injury, then I learn that the preceding level of evidence is the expectation for the patent examiner to have to rebut and reject my application.  No hard evidence was given to support a rejection, a very unequal or no application of law.

Frankly, I compare the on-going patent situation in this country to the subprime mortgage crisis.  The insiders knew what was going on and deep down the insiders knew subprime mortgages could not be sustained.  The subprime mortgage crisis was only addressed when it threatened the entire country and almost brought financial collapse to the United States.

I do not see the current patent situation in this country sustaining itself and it will end poorly if not addressed by Congress.  Obstacles should be removed to assist inventors with solutions to society’s problems, not the converse situation of adding restrictions without the consent of Congress.

Addressing my patent situation individually is not the answer, it would just be a band aid.  Clear and concise direction needs to be given from Congress to ensure a consistent framework to provide incentive to create and invent.  Rule of law needs to be ensured to put all parties on the same page.  Ironically, all this uncertainty in the patent community is not even helping those thinking about running off with my idea.  The potential infringers know this patent situation cannot be sustained and that they might face substantial legal settlements like in the subprime mortgage crisis when the situation corrects, a fair risk/reward analysis.

In the meantime, I can only go up the appeal ladder and hope for a miracle to come in time, which seems to be a grim prospect in the current legal environment.  Many legal scholars and jurists share the view that my appeals are entering the “(patent) killing fields” a coined outcry from a federal judge.

And back to my original question: Can I hold on long enough until the madness stops?

 

Image Source: Deposit Photos

The Author

Jeffrey Killian

Jeffrey Killian is the founder of Automated Benefit Solutions, LLC and has over 42 years of experience in Social Security benefits administration and patent liabilities. He has consulted Governors, Cabinet Members and other policy makers on issues of Social Security, Medicaid and other third-party reimbursements. Although holding several first in the nation accomplishments, Mr. Killian considers his biggest privilege and accomplishment to be both a servant and an advocate for people with disabilities.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 94 Comments comments. Join the discussion.

  1. Night Writer September 13, 2018 9:06 am

    >> The fact that my process uses concrete steps to solve a 62-year problem seemed meaningless in my patent prosecution. It appeared only ways to deny and trivialize my application were important, using bits and pieces from court cases outside my field of technology, which seems like a form of disrespect to the professionals and experts in my field of technology.

    The reality is that with KSR the examiner can pretty much decide whether any set of claims are patentable based on a sniff test.

  2. step back September 13, 2018 10:50 am

    The madness has only just begun.
    Forget about waiting for a grand finale.

  3. B September 13, 2018 4:06 pm

    Good article, Jeff. I read through your entire file-wrapper. The joke (if it were not so idiotic) is that, despite there is verified evidence that no one ever performed the method of your claims, its asserted that your claim amounts to ‘a fundamental economic practice long prevalent in our system of commerce.’

    Seriously. no 102, no 103, new and useful, but you’re dealing with Alice/Mayo. I’d call the PTO jackasses, but the real problem is the courts.

    —————————

    @ step back “The madness has only just begun.” I’m pretty sure were neck-deep in madness

  4. Night Writer September 13, 2018 9:50 pm

    I see it is 101 not 103. And you are in AU 3691 with an examiner that does not have signature authority. All of that does not bode well for you.

    Make sure to check out all the recent decisions where the 101 rejection has been overcome. It is possible.

  5. Benny September 14, 2018 8:50 am

    What was your plan for monetizing the patent ? It occurs to me that proving infringement migjt be extremely difficult in this case.

  6. Gene September 14, 2018 10:30 am

    “The computerized method for determining overlooked eligibility for social security disability insurance (SSDI)/adult child benefits through a computer network in Claim 1, wherein the SSDI adult child benefit eligibility has been overlooked in the parent’s or spouse’s routine social security application process due to inaccurate information, or lack of information during said application process, or the person’s SSDI adult child application was not properly pursued due to parent’s or spouse’s death was overlooked by parties associated with a disabled adult child.”

    “overlooked”, “eligibility”, “benefits”, “application process”, “inaccurate information”, “lack of information”, “properly pursued” and probably “parties associated” are all abstract.

  7. Babak Nouri September 14, 2018 11:08 am

    I have only been in this field for 3 years as a Patent Agent, but I’ve p r o b a b l y done more reading and thinking about Post-Alice patent eligibility situation than most Patent Attorneys. Speaking from the sum total of my experience, my take is that your chances of securing a patent for your invention are very small.

    Unfortunately, the starting point for Patent Eligibility (101) of a process/method in the post-Alice landscape is NOT conceptual novelty or Utility or how much it can transform the world for the better. The starting point is the Technical nature of the invention. Once, it has been established that the invention is of a Technical nature , only then other factors such as novelty and/or utility may be considered. USPTO does not consider Social Security Administration or any type of Administrative process as a field of technology (it will be lumped either under fundamental economic practice, a mental process or a way of organizing human activity) Therefore, unless you can demonstrate the technical nature of your invention, arguing for novelty and utility is a waste of time, because it will not make any difference.

    So, from the perspective of USPTO and the Courts, your invention is simply not patent eligible because, although it may solve a long-standing problem and improve quality of life for a portion of the population, it does not, solve a Technical Problem or advance Science and Technology in any obvious way.

    But if you can show that it does, than you can easily patent those aspects of it.

    However, If your invention solves a problem that people care about, you can still market it and hopefully make a lot of money from it – But it simply does not constitute what is these days considered as a Patent-Eligible Subject-Matter.

  8. Gene Quinn September 14, 2018 11:35 am

    Babak-

    I don’t dispute your characterization, but let us pause for a moment and reflect on just how tragic it is that one can write: “although it may solve a long-standing problem and improve quality of life…” it is not patent eligible. That is where we are, and it is utterly disgusting.

    Would the Wright Brothers patent on a flying machine be patent eligible today? What they really invented was the idea that when you warp the wings of a flying machine you can control flight. But they observed that was how birds successfully glided and controlled their glide. So what they contributed was really well known, routine and conventional, having been done by birds for millions of years (if not billions of years). And if it would have passed muster under 101, it would certainly be obvious today in light of the observation about birds despite the fact that no one else prior to the Wright Brothers had actually successfully controlled manned flight.

    The state of patent law as written and applied is pathetic. If you apply it literally to the greatest inventions of all time those inventions are arguable either not patent eligible or obvious, which is absurd.

    Thoughts anyone?

  9. Concerned September 14, 2018 11:40 am

    Benny @5:

    Proving infringement is a slam dunk. Everything leaves an electronic footprint via the Social Security Administration. I will know exactly who to check on.

  10. Jianqing Wu September 14, 2018 12:51 pm

    This anti-patent bias toward software is extreme. I have felt a severe impact of the AIA. The AIA affects prior art scope through 102(a)(2) (the secret prior art). 102(a)(2) is intended to prevent granting a patent which has been disclosed. However, the PTO now uses 102(b)(2) references in support of 103 rejections.

    The situation is shown in a hypothetical application here: If you file an application in 2014, the PTO may use all applications filed from 2005 to before 2014 with a publication date of 2016, 2017, 2018 as prior art. The use is in violation of the “at the time of effective filing” requirement. However, it seems to be a fashion practiced by examiners. In addition, examiners can use broadest interpretation. The PTO can move the prior art dates by as many as 10 years (many applications have more than 5 years pending periods) and expand prior art scope by finding claimed elements containing one or two (1-2) similar words. Naturally, some art units just reject any software invention automatically. Alice may be used as a pretext because examiners do not need evidence. The only thing they need is writing a good looking analysis. One will not see real problems until one carefully reads the disclosure. The chances are the rejected claims, as misinterpreted by examiners, are very different from the intended claims that inventors want to patent.

    This is just another madness. I hope I will see articles on two-way distortions of prior art.

  11. Concerned September 14, 2018 2:43 pm

    I have a problem with the fact the USPTO had to disregard their official memos, MPEP, facts and evidence to defeat my application. SCOTUS had to add words to the law.

    If their rules say its patentable, then that fact should trump opinions. Even the patent examiner said my application had patentability in the telephone interview and he said it 3 times.

  12. Ternary September 14, 2018 2:59 pm

    “Can I hold on long enough until the madness stops?” Unfortunately, the answer is no. Clearly, Judges and bureaucrats do not like computer based inventions. They cannot be bothered to argue evidence against claims to support a 102 or 103 rejection. A 101 rejection now clearly is a short-cut rejection that circumvents a reasoned rejection under 102 or 103. With KSR we were suddenly confronted with “common sense” combinations. That was not easy enough, because at least a semblance of argument had to be provided. A 101 rejection is much easier and needs very little argument. This is one tool that will be very hard to be pried from the minds and hands of Examiners and Judges. From their perspective Alice is a wonderful solution to a problem (Benson, Flook, Bilski, etc) that would not go away. Until Alice. They won’t let it go. Count on it.

  13. Anon September 14, 2018 5:01 pm

    There are stop gaps (several bills being floated by IP groups and the like) addressing the 101 issues.

    Long and short of it (as Ternary notes) is that the Supreme Court has (and will again) twist anything by Congress that may end up winding its way to them.

    This is why any long term approach needs to consider prompting Congress to use its Constitutional authority to employ jurisdiction stripping of the non-original jurisdiction of patent appeals away from the Supreme Court.

    As noted previously, this route would include setting up a new (and untainted) Article III court in order to preserve the holding of Marbury.

  14. Curious September 15, 2018 8:23 am

    Don’t take this is legal advice, but I agree with Babak’s assessment that “your chances of securing a patent for your invention are very small.” Just take a look at all of the technically-related patents that have been recently killed at the Federal Circuit. If I were you, I would ask myself, “are my claims any less abstract than the claims that were killed at the Federal Circuit?”

    My opinion (and not legal advice) is that your claims (which I have read) very likely fall on the “more abstract” side of just about any patent that I’ve seen killed at the Federal Circuit. That is not a good place to be.

    Absent the Supreme Court stepping in and saying “oops, we made a big mistake” or Congress intervening with a complete revision of 35 USC 101, I don’t see how your claims will ever get pass 35 USC 101 based upon how the law is being applied. The chances of the Supreme Court changing their collective mind is close to zero. The chances of Congress intervening is a little better, but you have to realize that the likes of Google, Facebook, Microsoft (among others) have their lobbying hooks into a lot of people in Congress, and they are pushing for the opposite. The public awareness of this issue is almost zero, and the other side has the “patent troll” card that they have expertly played to continue to weaken patent rights.

    To be honest, I believe there is a greater chance that Congress will curtail rights of inventors before Congress restores some of the rights of inventors that the Courts have taken away.

  15. concerned September 15, 2018 1:46 pm

    Curious @14:
    I agree with your statement regarding that is how the law is currently applied to patents. The courts have inserted their will over the actual law wrote by Congress and over official memos of the USPTO. And if the courts have the final say, regardless of rule of law or motives, my patent application is in a bad spot in reality, not from a legal standpoint.
    Frankly, the Alice decision supports my patent application: My solution was not long-standing or prevalent in commence. My solution did not exist in pen and paper and it did not exist with computers. SCOTUS would have no evidence to point out it was long standing in commerce, routine, well understood or conventional.
    However, the United States is also in a bad spot in the fall from #1 to #12 on patents in a few short years. That fall was before people realized inventing things that solve society’s problems and/or make life better is a bad experience to pursue. The fall looks to accelerate now that the word is getting out to avoid inventing, you will regret the heartache.
    Exactly what is the purpose of patents if it is not solving society’s problems or make life better? Anyone want to suggest a different purpose for invention and patents? Have we taken our eyes completely off the ball of solving problems and making life better to looking just at legal maneuvering?
    Curious, you suggested that I ask myself “are my claims any less abstract than the claims that were killed at the Federal Circuit?”, a fair question. Would that include asking myself with how the law reads and what Alice/EPG said about concrete steps to solve a problem unlike just applying a generic computer to a known solution? Rhetorical question, I know that you would love to see the madness stop, you are just reflecting the sad state of patent affairs and who is really calling the shots.
    I think a better question would be “What will happen first: I am no longer able to hold on or the country suffers unbearable financial harm?” The subprime crisis took 7 years before the brink of the United States’ financial implosion, the Alice decision is at year 4.
    And sure, SCOTUS will not admit their mistake for attempting to legislate from the bench, they will not need to admit it. Matters of this nature can never be sustained.

  16. B September 16, 2018 1:11 am

    @ anon “Long and short of it (as Ternary notes) is that the Supreme Court has (and will again) twist anything by Congress that may end up winding its way to them.”

    I think only vicious cattle-prodding of the SCOTUS and CAFC is the answer

  17. concerned September 16, 2018 7:42 am

    Babak @7:

    Agree that the “technical” nature is the view of the USPTO and courts and as such that is the reality. I do not find “technical” as a require of law as I am sure you would agree. You are just calling it as you see it. But is more than the technical view going on in the bachground.

    FYI: We argued McRO and ex parte Hafner 2015-002200 and it did not matter at the USPTO. In fact, has the USPTO issued any software patents without a remand back from the courts?

    My solution is rooted in computer technology. The Social Security applications of retirees is submitted electronically in the Social Security Administration’s network of computers. Once the retiree clicks that mouse, the inaccurate, incomplete or fraudulent application sails through with no technical solution on hand.
    McRO allowed the computerization of lip sync that was already performed manually, a computerization of a known manual solution. McRO’s patent stood intact after appeal. My solution goes one step further: The computerization of an unknown process to affect a significant post-solution activity never achieve by the Social Security Administration’s computer network or the computers of disability attorneys. My solution was not known manually or with a computer. My solution is not applying a generic computer to a known solution, it is applying a brand-new network to a brand-new solution and it is rooted in computer technology.

    None of these arguments mattered at the USPTO. MY application was dead on arrival. I must throw the dice on appeal and hope I get a group of judges who follow the logic, the law, official memos and is not part of the Facebook, Google, Microsoft tee times.

    I am confident I will be in front of United States House Representative Steve Stivers who co=sponsor STRONGER Patents Act this spring, important people are making the ask to see me already. I am suggesting to Representative Stiver’s that my application be his poster child. I will also relay Anon’s concerns @13.

  18. LazyCubicleMonkey September 17, 2018 12:59 am

    Oh, where to begin.

    The fact that our government bureaucracy is so vast that it requires an “invention” to navigate.

    Can these 62 steps be done by hand? Or on a general purpose computer?

    As someone who writes software, having patents on software is not necessary to promote the progress of arts & sciences as described by the Copyright Clause. People write software sans any patent benefits – with plenty of novel ideas – just take a look at open source.

    Everyone seems to take it as a given that software patents is a positive thing. Why? From where I’m sitting, it’s unnecessary for the original goal described in the Constitution.

  19. Concerned September 17, 2018 2:53 am

    @18:

    No, the steps cannot be done by hand or a generic computer. One of the 2 universities tried to do the prior art by hand and failed misably. The university’s efforts were discontinued.

    It is the incorporation of my claimed rules, not the use of a computer, that improves the technological process by allowing the automation to occur. McRO.

    First, a process needed to be discovered to filter who the possible oversights could be and correctly identify the oversights from the entire general population that may or may not have children. BASCOM.

    Second, a process to constantly monitor when retirement, disability or death may occur. A disability attorney maximum fee is $6,000 plus some miscellaneous fees. One or two false checks and the profit evaporates. Some people need to be monitored twice a year for 30 years. BASCOM

    Third, caseworkers outside the scope of the government’s direct authority need to be involved. One or two false checks and they tell you to forget it. They are busy people, wearing many hats, come back when you have a positive result. BASCOM

    And if a person is lucky enough to solve the above problems, the cost of the network and administrative support is substantial. Who will invest only to discover a political crony gets to run off with the idea.

    I think the professionals and experts in my field are a lot smarter than me. They are pretty sharp. This invention was not as easy to discover as it looks.

    So were the framers of the constitution, they were pretty sharp. Had to beat the king. They knew human nature. God has thou shall not steal at #8. The framers just put it in the constitution.

  20. Anon September 17, 2018 5:45 am

    LCM,

    The place from where you are sitting is steeped in Slashdot/Techdirt MISconceptions.

    It really is lazy to regurgitate the Kool-Aid that you have quaffed.

    A couple of pointers:

    Software is patent-equivalent to hardware.

    One cannot “just use” software on a machine until first that machine is changed and configured to run that software.

    Patents are not strictly (only) for “but-for” reasoning. Anyone can choose “open source” for ANY type of innovation. But it is simple error to use that ability to choose to then deny the choice to engage in the patent system. For ANY type of innovaton.

    The “Copyright clause” — as you put it — is for BOTH IP laws that protect expression AND utility.

    Patent system is for protecting utility
    Copyright system is for protecting expression

    Different aspects.

    An item — such as software — has more than one aspect and thus earns protection form more than one system for the different aspects.

    Every single one of your views is an non-original anti-patent view that has been debunked time and again.

    Sometimes “Lazy” is good. This is not one of those times.

  21. LazyCubicleMonkey September 17, 2018 7:25 pm

    @Anon

    arstechnica.com – but point taken. That doesn’t mean any of those points are invalid. Just that they’ve been made before. There’s also different audiences involved. It seems that the majority of the people who actually write software (and know software better than lawyers) are against software being patentable, while lawyers (who know the law better than software engineers) are for patenting of software. Funny how that is, no? Perhaps it just people being people and seeing where their paycheck comes from?

    One can just “use software” on a machine. Once an OS is installed, the software binary can run on said machine. So not sure what you mean there.

    And software is protected by copyright already. So why does software need copyright & patent laws? Since you draw an equivalent to hardware, hardware doesn’t have copyright – but I would agree it needs some some sort of IP protection – patents fill this space well. The same cannot be said for software – since utility in it of itself isn’t always patentable – think abstract math. And software is just that – abstract math put into a succinct form that can be run by a computer. Any process done in software can be done by hand – given enough time. And any software can be run (or emulated on) a general purpose computer.

    While I agree that my views are non-original, I have not seen anything that actually debunks it (feel free to link to it).

    I’ve also need seen any reasoning that actually explains why (software) patents are automatically good & desired – which seems to be the view that just about everyone here holds. I really think seeing that reasoning would clarify things (or at the very least make this a more fruitful discussion) – since I don’t think that’s a valid premise to begin with. From where I’m sitting (a software developer), they’re just a drag on productivity.

  22. concerned September 18, 2018 12:36 am

    LCM:
    Personally, I do not think putting software on everything and anything is good and should automatically be patented. I do think solving a problem professionals and experts could not solve is good regardless if software is involved. Alice made that distinction. The generic computer was placed on a known solution, the professionals and experts were not running around trying to solve intermittent settlements.
    People wanted a solution to the problem I addressed. In fact, two the of the previous State Medicaid Directors in Ohio readily admitted to my audience that they tried to solve this problem personally. There were no disclaimers by those State Medicaid Directors such as forget it if your solution uses software, that is the narrative the efficient infringers want to promote. My peer groups are congratulating me on the discovery to include a very well-known national consulting group. I am sure the peer groups would not rescind those congratulations if I whispered software was used, those peer groups care about people and solutions that help society.
    Yet the anti-software crowd intentionally took the extreme view that all software is bad (except the ideas they invented and want patented of course). And that crowd added their own flavor to the Alice decision to discredit everyone else. My invention is allegedly too abstract, or it is not technical enough, or was invented on a Wednesday, or I have brown hair, etc. My patent application was dead on arrival no matter what it solved or what the law says. I really feel cheated, like I was beat by someone dealing off the bottom of the card deck.
    Against all odds, and in a strange way, I am gaining confidence that I just might win on appeal after Mr. Quinn was kind enough to share my story. Nobody questioned my evidence, nobody disputed the Bahr memos, nobody pointed to a law that disqualifies my patent application. Where I come from, the preceding mattered in a legal setting.
    I do realize many posters were just telling me the reality of the situation and what I am up against with the anti-patent bias group.
    I must admit. Whoever coined and marketed the patent troll concept is a genius. That person got everyone to take their eye off the ball that inventions can solve problems and make life better.

  23. LazyCubicleMonkey September 18, 2018 12:57 am

    @concerned

    I have not read the details of your particular patent application (I’m assuming it’s secret until it’s patented, or I just missed the link? If so, my bad.). I still think it’s ridiculous that the bureaucracy is at such a point that it requires “inventions” to navigate. Perhaps – that’s the problem in this particular instance? If a bureaucracy requires 62 distinct steps to navigate through it, perhaps the laws/regulations that force this requirement is the problem? Is this the government our founding fathers envisioned?

    You mentioned the distinctions made by Alice. Does this mean your software has to be run on a specialized computer as opposed to generic hardware?

    If your solution is truly software, then your particular solution would be copyrightable, no? But if I’m understanding correctly, you’re goal is to patent the 62 steps, which just happen to be implemented in software? In the abstract case, one would look at those 62 steps to see if they pass all the required tests to be patentable. But in this particular case, I can’t get over the fact that the necessity for this process in the first place is a man-made beauracracy, and not some limiting forces of nature/physics/etc. I guess legally speaking, there’s nothing to preclude that… But what happens if the laws/regulations regarding social security get tweaked? Does the 62-step process you came up with become moot/void/unnecessary/irrelevant? Would you have to tweak 1 or more steps and attempt to re-patent them all over again?

  24. concerned September 18, 2018 5:18 am

    LCM:
    My process is not 62 steps. My process is a solution that was 62 years in discovery. The SSDI program began in 1956, no one figure out the solution until I got lucky. The professionals and experts tried and tried hard considering what was at stake. It is the Holy Grail of my profession.
    It is a process not rooted in the bowels of bureaucracy. It is a solution that had to overcome unknown factors and the actions of people beyond the supervision of the government. How to overcome consent forms, people and family members who do not even know eligibility of the benefit exists, the cost factor of repeat reviews extending for years, unknown dates of death/retirement or disability and fraud. Someone at the Social Security Administration cannot simply do some checking and solve this problem, it would have been ordered done by supervision if that was the case.
    Suppose the professionals and experts across the nation in your profession were seeking a solution in software programming for 62 years. The person in the next cubicle stands up and shouts “I did it!” Would you think a discovery or invention just happened? Or would you start finding ways to discredit the person thinking everyone the last 62 years had to be incompetent? Or big deal, it is too abstract or not technical enough or was found the day before a holiday when half the staff went home early?
    People ask me constantly if I am afraid someone is going to just steal this idea. One major information technology company is playing a cat and mouse game with me. I thought I was playing by all the rules, and I met those rules. But apparently those laws, memos and any evidence does not count, just opinions on how the invention/solution must look.
    Dorothy came back with the broomstick of the wicked witch of the west, against all odds, and the wizard was just kidding. It was all smoke and mirrors. Her shoes had to be black, not ruby in color.

  25. Anon September 18, 2018 10:42 am

    arstechnica.com – but point taken. That doesn’t mean any of those points are invalid. Just that they’ve been made before.

    The points not only have been made before – so have the counterpoints, of which you continue to choose not to grasp. You do not want to see the rebuttals – and examples of such are even in the post that you make here.

    Please bear with this post – it is indeed long (but could be much longer!)

    Let’s focus on two of your comments and reflect how these two items reinforce my message to you that “Lazy” is not appropriate for our discussions.

    There’s also different audiences involved….” and continuing through “Perhaps it just people being people and seeing where their paycheck comes from?

    This facet has been explored previously, and shows a major misconception on your part (as often reinforced by the “Lemming Effect” as so often is found in following places like ArsTechnica without employing critical thinking). You continue to imbibe in a known anti-patent Kool-Aid environment, and then want to pretend that such an environment provides you some type of “neutral” viewpoint.

    The larger point in regards to your “suggestion” is that your suggestion simply does not wash with reality. Yes, the Lemmings at Ars Technica are anti-patent.

    That is the audience there.

    But to insinuate that no innovations from the programming side (technical) desires patents is a falsehood.
    To imply that “mere lawyers” are the only ones wanting patents is a falsehood.

    As an attorney, I serve clients (tech types) that WANT software patents. Without that want from the tech side, the attorney side would simply shift to others and the wants of others. Secondly, in the sphere of law that is patent law, you DO have the “mere attorney” having a tech background and understanding. It is NOT as you might have it that the programmers are on one side and the attorneys are on the other and each do not know the other side. Instead, when you are dealing with a patent attorney you (OFTEN) will be dealing with someone who NOT ONLY knows the legal side, but knows the tech side as well.

    Fold into the understanding of tech and legal, a larger understanding of innovation itself, and THIS is why you see such fierce passion from patent attorneys who understand BOTH tech and legal and who are driven by a desire to protect innovation (and not the mere paycheck as you imply). Having a foot in both worlds is key. You have shown some interest in the legal world, but clearly, you have no foot in that world.

    Additionally, your immediate comment here of
    And software is protected by copyright already. So why does software need copyright & patent laws?

    Simply ignores the point provided that different forms of IP protection under the law are geared to different aspects being protected.

    Your comment wants some type of “either/or” when that is simply not appropriate.

    There is NO matter of “need” in the sense that you want to impart.

    This is not any type of “fill the space” type of thing, with copyright “taking the place of” patent protection. Each exists for different spaces.

    You show a complete lack of footing in the legal world with such a view. Further, you show a complete lack of understanding of innovation with such a view. Verily, the “Lemming” factor so often seen at places like Ars Technica comes from a “I just want to copy” mindset – and not one that understands what it means to protect innovation. The “just copy” can easily “get around” the expressive parts of software, which is exactly why the utility parts “need” patent protection.

    You do not “see” what is directly in front of you. Closing your eyes to this point (and imbibing without critical thinking at places like Ars Technica), only guarantee that you will only continue to drink the Kool-Aid and be locked into an anti-patent philosophy.

    You then “get” a few technical things wrong. Perhaps you just do not understand the technical context as it fits with the legal context, perhaps you just do not see the technical aspect in view of the larger understanding of innovation.

    First, it is simply not correct to state: “One can just “use software” on a machine. Once an OS is installed, the software binary can run on said machine.” Since the OS is software, and the OS is part and parcel of any other software that will be configured to “run on,” you cannot dissect and dismiss “software” as you attempt. Also, there is a legal concept in patent law called the doctrine of inherency. Your position amounts to saying that ALL (non-OS) software is somehow “already in there,” and that is just not so. You STILL have to load software to “just use the machine,” and the machine sans software simply cannot “run” or “just use” software that has not been configured into the machine by such loading. OS in and of itself is not sufficient. You NEED an additional component.

    Second, you are very confused in regards to “math.”
    since utility in it of itself isn’t always patentable – think abstract math. And software is just that
    Your statement of utility is not legally correct. And your statement of what software is IS not technically correct (you do not have a foot to stand on in either world).
    You have three different concepts regarding math:
    1) math – basic fundamental building blocks
    2) applied math – as the name indicates, this is the application of the fundamental building blocks (and is reflective of ALL engineering) and for which, with the noting of utility within the Useful Arts is the very thing for which the patent system is intended to cover; and
    3) Math(S) – which is a philosophy of math and applied math. Far too often, we have “tech” people confusing themselves in their pursuit of knowledge into thinking that the philosophy somehow removes “applied math” from any “mundane” thing like legal protection.

    Further, the parallel I draw to hardware is from the “ware” meaning. You distract yourself with “hardware cannot earn copyright, and ignore the utility protection and the very equivalence – under patent law – that is the very point of the statement.

    You then slip into more folly that comes from the Ars Technica Kool-Aid:
    abstract math put into a succinct form that can be run by a computer. Any process done in software can be done by hand – given enough time. And any software can be run (or emulated on) a general purpose computer.

    Your view of “abstract math” has no technical or legal bearing, and instead reflects the philosophical notions in Math(S). The actual technical and legal aspect to understand is that software is a manufacture under the hand of man, manufactured for the purpose of utility as a machine component. It is NOT some “existential pondering.” Reality intrudes – as it must – and the fallacy of “if enough time” (aka infinite time) or “if enough space” (infinite loops, or infinite 1’s and 0’s or the like) separate from the “Philosophical” and migrate to the hand of man for utilitarian purposes.

    While I agree that my views are non-original, I have not seen anything that actually debunks it (feel free to link to it).

    No need to link. There is a need for you to apply critical thinking and do more than lap up the dogma from Ars Technica.

    You finish with what appears to be yet another fallacy:

    >I’ve also need seen any reasoning that actually explains why (software) patents are automatically good & desired – which seems to be the view that just about everyone here holds.

    We talk here in larger concepts (as so often is the case with law). This is where your lack of a foot in both worlds impedes your understanding of both worlds. Patents – in and of themselves – are what are “automatically” good and desired. This does NOT mean “patent without regard to the legal requirements.” This DOES mean that ANY – and all – patents that DO meet the legal requirements are – in and of themselves – automatically good for having earned a Quid Pro Quo. “Good” in this sense also does NOT mean (as is often confused) some linear (or non-linear) ADVANCE in a technological sense. Part of understanding the legal notion of patents is to understand that the “promote” meaning in patent law includes not just “tech advance” but also the more “mundane” sense of the word from an advertising sense: ”promotion.” See my analogies to paving a parking lot versus paving a grid of streets.

    since I don’t think that’s a valid premise to begin with.

    Therein lies the problem. It is definitely a “YOU” problem.

    From where I’m sitting (a software developer), they’re just a drag on productivity.

    This too likely comes from the “I just want to copy” mantra. But that is not how innovation works.

    As I have shared with you previously: “Necessity is the mother of invention” and sometimes blocking what you may deem as “productivity” is what SPURS greater innovation.

  26. Night Writer September 18, 2018 11:38 am

    LCM >>> just take a look at open source

    I have advanced degrees in computer science and was a software engineer. First, often, all open source does is copy the commercial software consciously or not. It is very rare for anything novel to come out of open source.

    Second, often, the only reason the software engineers have the job and money is patents. The patents enable the company to stop copiers.

    Etc.

  27. Jianqing Wu September 18, 2018 1:28 pm

    Even if an invention solves a problem of a 1000 years old, it can be obvious in law. Such law must have problem.

  28. Jianqing Wu September 18, 2018 1:34 pm

    Even if an invention solves a problem of a 1000 years old, it can be obvious in law.
    Such law must have problems.

  29. LazyCubicleMonkey September 19, 2018 7:17 pm

    @concerned

    My apologies for mis-reading the 62 steps vs 62 years. I’d still like to know if tweaking a few laws/regulations would prevent your patent from working (as is). If so, then I still posit that the problem here is the vast bureaucracy. So I’m not actually sure how much of the debate we’re having actually involves software.

    @Anon
    And so have the counter-counter points.

    While I recognize the audience as arstechnica can lean anti-software patent, you fail to grasp that the audience here is just as pro-patent. So the Lemming argument applies to both sides. Or is your position that the audience here is neutral and only the audience on arstechnica is anti-patent? From where I’m sitting, the audience here drank the wrong flavor of Kool-aid, but Kool-aid just the same. Or is there some objective knowledge you can impart that pro-patent is somehow the default/neutral environment?

    In fact, I apply critical thinking to what I read (otherwise, why would I be here? I can just remain there without any challenges to my viewpoint).

    Regarding lawyers vs software engineers, perhaps I didn’t qualify my statement. There are obviously pro-patent software engineers & anti-software patent lawyers (see Lee Cheng from newegg: https://arstechnica.com/tech-policy/2016/09/patents-are-bulls-t-says-neweggs-chief-legal-officer-lee-cheng/). Which further proves my point – there’s strong beliefs on both sides, and neither side has a monopoly on stupidity/lemmingness/neutral position. I can see that, can you? Or will you just declare that lawyer (and any judges that disagree with you) as wrong (despite the fact that he’s won quite a few of these suits) because it doesn’t fit your world view?

    Regarding copyright/patent – I see the distinction (you’ve made it clearer, thank you). While you’ve successfully argued the either/or point, I’ve still yet to see how software is different from abstract math which is not patentable.

    Regarding the software binaries running on OS – maybe we’re talking past each other. But the OS exists independent of the software binary that needs to run on it. Unless you’re writing drivers/OS/microchip code/etc, the OS exists independently of the software you write for it. Maybe the ‘part & parcel’ phrase means different things to us? And the additional component is the software one writes.

    Software (that tells the computer how to do something, as opposed to what to do (so SQL wouldn’t qualify for this)) is a series of concrete steps that the computer undertakes – each step is some form of arithmetic/branching/copying/jumping/etc. Each of those are basic mathematical operations. If you think it’s something other than that, please enlighten me.

    Regarding your distinctions between math/applied math/maths – you may need to clarify further. For example, take matrix multiplication – do you consider that math or applied math? What if it’s used to solve a set of equations the solutions for which are needed to supply the constants to optimize a product?

    You seem to make a distinction of utility regarding infinite time/space. So tell me, how many manual steps must be taken before it goes utilitarian to philosophical. I’d like an exact number please. (Yes, I’m being facetious, but I don’t see this difference. In fact, if I recall correctly, there was an article on this blog quite recently that had to do with databases where the judges did in fact declare something similar).

    You’ve finally got to the meat of the matter – the belief that patents are automatically good – a premise I don’t feel you’ve proven. At best, you’ve proven that a patent is better than no patent. But by that very premise, open source is better than patent – since it has all the advertising & utility but non of the downsides of a government-enforced monopoly – anyone can use it/modify it/use it to build bigger & greater things. You make the assumption that without patents, there would be no innovation (in software). That’s simply untrue. Look at all the software being written un-encumbered by patents. In, that would apply to most software – which makes patents for software unnecessary. The other point that patents ‘promote’ or advertise software is based on your lack of understanding of the software world. Since software is built on top of software on top of software, programmers are always (re)using code/chaining it together/etc. Without the world wide web, perhaps they’d look at obscure patent applications & use the knowledge there. But in reality, programmers google for snippets/examples/etc which are freely & much more widely available than patents. (That’s where the running joke that programming should be renamed to googling stackoverflow comes from). As such, any software tied up in patents actually block innovation & contribute (next to) nothing to promote more software. And finally, software is very fast moving.

    A 20 year block on software is waay waay to long and still ends up impeding progress. And that’s why I don’t share your view that (software) patents are automatically good & desired.

    P.S. How do you do bold formatting?

  30. LazyCubicleMonkey September 19, 2018 9:34 pm

    @Night Writer

    Please clarify what you mean by copies. Do you mean copies in the copy & paste way (or something close to it), or do you mean mimic the functionality, but more of a clean-room re-implementation way?

    I guess you really haven’t done much as much work in the real world as you say. The majority of software companies (which tend to be on the smaller side) do not hold patents. And many of the large ones that do, only use them defensively (if sued by others). And the actual majority just keep their software as trade secrets – all that back-end code never sees the light of day. So your stated reason for why software engineers make money & have jobs is false, or disingenuous at best.

  31. Concerned September 20, 2018 5:36 am

    LCM @ 29:

    No, tweaking laws do not solve the problem unless you are talking the laws of human nature.

    Do laws stop fraud? Do laws stop death or require a 30 days notice of an upcoming death?

    Please stop trying to reduce my invention to an argument of government incompetency. There are private sector attorneys who also tried to find this solution. and tried hard. The financial reward would have been huge to them.

  32. LazyCubicleMonkey September 20, 2018 9:17 pm

    @Concerned

    That was a genuine question – since I don’t know the details – these are questions that would materially affect your patent application, no? I’m not trying to reduce your invention – but I am interested in why it’s necessary to begin with.

    With your particular examples, the answer is no – laws do not stop fraud. But the 30 day notice of an upcoming death is something that is required by laws and/or regulations. (Otherwise, why 30?). So if that law/regulation is changed/amended/removed, would that invalidate your patent (assuming it’s granted) as is?

  33. concerned September 21, 2018 3:32 am

    LCM:
    The 30 days notice of death was a tongue in cheek joke, it is not a legal requirement. However, such a 30 notice would be beneficial for application purposes if it was realistic.
    The challenges of the problem solved by my patent application cannot be legislated away in a free society. Too many parties are involved that the government does not have direct authority. Also, remember that the Social Security Administration processes benefits for the general population at large. Changing or adding laws does not solve the problem.
    The only thing that makes my idea obsolete would be to write the SSDI benefit out of law for a disabled adult child, and that would be counterproductive. First, it would be mean-spirited. Second, the SSDI benefit can support the treatment in the least restrictive environment at the lowest possible cost point.

  34. Anon September 21, 2018 10:39 am

    LCM,

    I wanted to reply to your post in detail (in part, because I believe that you may not be as Lazy as the chosen “L” in your moniker.

    However, I have not been able to square away the time to do so.

    I did want to respond at least initially though to take issue with the beginning of your reply at post 29: “And so have the counter-counter points.

    This is expressly not so. Quite in fact, the counter points that I have long presented (on this and other forums) have been deliberately avoided being addressed.

    I have seen NO counter-counter points whatsoever.

    If you could point me in the direction of these counter-counter points, I would be more than happy to address them.

  35. LazyCubicleMonkey September 25, 2018 12:18 am

    @Anon

    Uhh… thank you for the compliment?

    Regarding the counter/counter points, I think it makes some sense to lay down a framework/common reasoning before addressing any of them – in particular: what establishes the (resolving? winning?) criteria that would make a successful argument to a particular point.

    1. Is the current/latest legal law/analysis the final word? (If so – you obviously win)
    2. Is it the cost-benefit analysis in regards to the creators/inventors? (Berne convention type goals)
    3. Is it the cost-benefit analysis regarding the incentives to create new patents (patents being an end unto itself)?
    4. Is it the cost-benefit analysis regarding the (incentive of?) creation of useful arts & sciences that benefits the public at large? (The goal being to create/invent as much (or as valuable?) arts & sciences as possible)
    5. Is it the cost-benefit analysis to the public overall (benefits of creation of useful arts/sciences vs the cost/drain of productivity of the lawsuits/legal issues that result from them)
    6. Something else? Some combination of the above?

    I suspect that we may have different goals/burdens of proof so we’re talking past each other. Only after we agree on the above, does it make sense to take the discussion further. I would also be curious on which of the above (or your own mix/match) you’d use the to describe the Copyright Clause of the Constitution (by itself, without any case law/additional laws/etc) – which is why I used the ‘useful arts & sciences’ phrase above several times.

    P.S. Keep in mind that all of the above is only in relation to software – as the above calculus would be different for other subject matter that I don’t feel qualified to comment on.

  36. Anon September 26, 2018 6:42 pm

    In general, this thread has begun to age (now twice “below the fold” (to use an archaic newspaper term), so if you are still with me, LCM, your “L” is very inapt indeed.

    That being said, as to “Uhh… thank you for the compliment?” – you are welcome (as there was a genuine compliment in there!)

    As to “makes some sense to lay down a framework/common reasoning before addressing any of them – in particular: what establishes the (resolving? winning?) criteria that would make a successful argument to a particular point.

    Three items:

    First, since this involves others, they may not agree with anything that we may agree to, so the terms will be very narrow.

    Second, since others have not responded to counter points, your initial thrust IS shown to be incorrect. You had insinuated that counter-counter points had been presented. Such is simply NOT the case (even as here, you may be willing to set some sense of “ground rules” for criteria AFTER counter points and counter-counter points are presented. You should be aware that any such rule simply does NOT address my thrust (and your counter thrust), and would only serve to NOW provide some semblance of evaluation between OUR exchange

    Third, well let’s get on to the particular suggestions that you offer for this new age of dialogue (and let me be frank: I enjoy the fact that you are willing to put forth effort on dialogue – you should recognize just how rare that really is!)

    As to: “1. Is the current/latest legal law/analysis the final word? (If so – you obviously win)” Well, yes, since this is a legal blog, the best and nominative measure would be a legal analysis. After all, anything else would be a different discussion and may well sound in counting angels on the heads of pins.

    As to your 2 through 5, each of which appears to switch to a variety of “cost/benefit scenarios,” I would preface EACH by saying that the only meaningful “cost/benefit” that really impacts the LEGAL discussion related to PATENT LAW is the one that neither of us control, as that “cost/benefit” metric is subsumed in the words of law as chosen by Congress. Note here that there is much ballyhoo separate from the words of law as chosen by Congress, but the underlying item here is SOLELY that which is in the proper allowance to a single branch of the government (which said branch IS Congress).

    So with that provision, your various C/B’s are to:
    2. [_] creators/inventors? (Berne convention type goals)
    3. [_] incentives to create new patents (patents being an end unto itself)?
    4. [_] (incentive of?) creation of useful arts & sciences that benefits the public at large? (The goal being to create/invent as much (or as valuable?) arts & sciences as possible)
    5. [_] public overall (benefits of creation of useful arts/sciences vs the cost/drain of productivity of the lawsuits/legal issues that result from them)

    And your “6” is to either something else or some combination of 2-5.

    You then add: “ we may have different goals/burdens of proof so we’re talking past each other.” which PRESUMES that goals/burdens of proof are proper – and no such presumption has inured.

    Let’s take a step back then and realize that what you are really after is WHY do we have patents at all? Why have patents in the first place?

    I do not think that THAT question is one that is either appropriate for the given point at contention, nor is one that can be handled easily in a blog exchange. I will have to merely point out that as a society and as a nation, we HAVE so decided. And further, the manner of so deciding IS in our laws (the very first item to which you acquiesced a position to in my favor).

    Your additional musings simply are inapposite (no matter how interesting they may be) to the underlying issue.

    The interest in your attempt to reframe the discussion is more in tune to questioning WHETHER we should have a patent system at all. It is NOT that these are “bad” questions mind you, but they are simply inappropriate questions for OUR dialogue.

    Further still, you express a position that is NOT permitted (per se): “ all of the above is only in relation to software – as the above calculus would be different” as our Congress has expressly rejected your notion that the calculus IS to be different. Simply put, we do NOT have different patent law (by and large, there are subtle items of difference that do not bear on our dialogue) for different art units. You appear to want to start with a presumption that is not grounded in our reality. You may FEEL that software somehow should be different, but that is not a feeling grounded in any part of a dialogue that we may choose to entertain in relation to legal protection of innovation.

  37. LazyCubicleMonkey September 26, 2018 7:48 pm

    @Anon

    Thank you for taking the time to answer me. It is indeed hard to get a meaningful discussion going (on the internets no less!) without it devolving into a shouting match.

    Regarding the counter-counter points, I did some re-reading and I came to the conclusion that while we were using the same pieces to play the game, we’re playing by different rules with different criteria for winning. That’s why I took some time to clearly lay out what the rules are before continuing. As I suspected, we’re not playing the same game so declaring victory isn’t particularly meaningful. I do apologize for not picking up on this sooner – if I had I likely would’ve never made the counter-counter point argument.

    This blog is concerned around the legal analysis – ones that you’re obviously better equipped to argue than me. However, I have seen plenty of commentators on this blog (perhaps not you) make the point that a particular legal decision is wrong or incongruent with current law based on facts and/or precedent. As such, there’s still plenty of room to argue what a legal decision should’ve been instead of what it is. Why not the laws Congress should/shouldn’t have passed? However, I would concede any such argument before it even starts unless it’s coming strictly based on the copyright clause of the Constitution and not the subsequent laws/precedent passed/made by Congress/the Courts.

    While Congress does write the laws, I don’t fully concede the lack of any cost-benefit analysis as provided by the Constitution. Since the goal of the copyright clause is “to promote the arts and useful sciences”, one could argue that laws that run counter to that goal (even if passed by Congress) are wrong/incorrect/shouldn’t have been passed. (Similarly to my point above regarding commentators arguing about legal decisions being incorrect).

    Regarding the patent system – I clearly recognize the reason & usefulness of the patent system. From my limited reading regarding patents in fields other than software (pharma for example), the cost-benefit analysis (particularly points 4&5) actually lean towards (having) the patent system. So I do understand why patents exist & in no way am I suggesting scrapping the whole system.

    The reason why I [i]feel[/i] software is different is because I truly believe that software patents run counter to the stated goal of the copyright clause of the Constitution – they do not promote the useful arts & sciences & hinder it instead.

    When the Constitution says “[b]promote[/b] the useful arts & sciences”, how is that not a cost benefit analysis if a certain policy hinders the useful arts & sciences? How would you define/explain/etc the word ‘promote’ in the copyright clause? And how would you quantify it? (Let’s say a certain policy results in 10 additional software modules that are 50 lines of code vs 1 module that’s 500 lines of code?) It is this point that that I’m getting at – in my view, ‘promote’ does not exist in a vacuum – a certain policy can promote ‘inventions’ in one field and hinder in another. (Usually the case of un-intended side-effects).

    I hope I cleared up where I’m coming from.

  38. Anon September 27, 2018 12:09 pm

    LCM,

    As I have stated, patent law simply does not work as you feel that it should.

    You DO want to have a different type of conversation (akin to counting angels on the head of a pin) based on your feelings as to whether an entire type of innovation “promotes.”

    As I have noted previously, these feelings of yours are continuously bathed in the anti-patent rhetoric of Ars Technica (and the like), which makes any “debate” about feelings a bit non-rewarding for any (and every) one. I will also reiterate that your desire to introduce any number of different “cost/benefit” metrics simply falls to be NOT on point to the legal domain (such being subsumed on a far more global — that is, NON art-specific; as well as not by you or I — scale).

    I “get” that you “want” this to be different, but your “want” is simply not material.

    And again, it is not that your attempts to rephrase the issue are not interesting, but make no mistake, your attempts ARE attempts to rephrase the issue (both in degree and in kind) from how the issue IS.

    I think that you (and this includes the Royal “You” of any like-minded individuals) would gain better traction by fully embracing the law as it is and state that you want changes to the law (including, but not limited to, fracturing innovation protection into any number of technical subsets**); and then proceeding with the varying cost/benefit items that you may want to use to base your wants upon.

    **I do add a caveat here to note that “software innovation” in and of itself may NOT be so “separable,” as that type of innovation is rather defused into most all other types of innovation.

    (and we do not even get into the fact that your feelings on “not promoting” may well be based on the simple misunderstanding that equates “blocking” with “not promoting” and failing to take into accord the fact that blocking STIRS innovation (look into the adage of “Necessity is the mother of invention”).

  39. LazyCubicleMonkey September 27, 2018 8:57 pm

    @Anon

    Fair point on rephrasing the question/having a different discussion than we’re having now. But that is the discussion that Ars & the other tech sites are having. So it seems rather odd to be hating on them while not actually discussing their points in the context that they’re making them.

    I have seen complaints on this site about legislation (and proposed legislation) itself (how it screws inventors/patent holders, etc) – so it does seem that what the law should be is fair game on this blog. But perhaps limited to a small number of posts/topics, this perhaps not being one of them.

    Regarding “blocking” promoting innovation – it can in fact “stir” innovation. But it could also hinder it/slow it down.

    A simple example would be if innovation A is patented and is necessary to reach goal C, blocking A can indeed stir to come up with a different solution B that achieves the same result as A and gets to C. But time spent on achieving B could’ve instead been spent on going from C to D. So while you may think it’s just my feelings, I do base them on logic.

    I know you’ve defined “promoting” in the context of the copyright clause as twofold (correct me if I’m wrong):

    1. Incentivising (the creation of new arts & sciences)
    2. Advertising said arts & sciences for them to get greater public reach.

    So policies Congress should be passing should be maximizing the above 2 points. Please correct me where I went wrong.

  40. Anon September 28, 2018 8:33 am

    Let me correct you right at the start:

    discussion than we’re having now. But that is the discussion that Ars & the other tech sites are having.

    No. They are NOT having “that discussion.”

    And by “that discussion” I refer to the path that I suggest (fully admitting to what the law IS). Instead, “that discussion” is more the mis-stating of law and attempts to insert “what they want” for “what is.”

    Secondly, “what the law should be” IS fair game. And I know of no one that IF the phrasing is put properly (as I suggest), then a discussion could be had. But that is decidedly NOT what goes on at Ars Technica (and the like).

    As to “but also could hinder/slow down,” you quite miss the point that hindering and slowing down IS a function of forcing creativity in new directions. Have you ever heard the phrase “good is the enemy of great”…? What you may want is the convenience of the “easy now.” I suggest that you delve into some innovation theory to see just why that path is NOT the optimal path.

    It’s not that you lack any Logic for your feelings and wants (and I have never postulated any such lack), it is that THAT logic is an inferior one when it comes to the larger picture of innovation and the force created with strong patents (and i expressly note that this mechanism applies across ALL fields of innovation).

    As to “promote” — yes, I have reminded people that the sense of the word is in at least two senses. I have provided such not to be limited to the two senses, but to remind people that it is not in a single sense. All too often, people assume that 1) each and every patent MUST provide some positive and immediate “advance” over the state of the art when innovation works differently. Have you seen my analogy comparing and contrasting the paving of a grid of streets and a paving of a parking lot?

  41. Anon September 28, 2018 9:17 am

    (If I may quickly add that the “it would be nice for the quick and easy copy NOW” mentality that is replete in the coding ranks of the software field is NOT limited to the software field. Without derision, I suggest that your myopia (your only wanting to speak from the software angle because that’s what you know) artificially elevates that “short term” copy-now aspect as having more “value” because “software” — and thus software “should be” different IS merely an unwarranted bias.

    As I stated, patent law is NOT geared to a (fractured) approach to any one particular art field, but instead is geared to the more universal innovation drivers (of which, software simply is not different — no matter how much you may feel differently).

  42. LazyCubicleMonkey September 29, 2018 1:57 pm

    @Anon

    So in your view, what is the discussion that goes on there?

    [i]As to “but also could hinder/slow down,” you quite miss the point that hindering and slowing down IS a function of forcing creativity in new directions.[/i]

    If that’s really a force for creativity, why not have everything automatically patented (similar the way copyright works). That should be a huge boost to creativity based on that logic.

    And since you mentioned optimal, then you must have some way of measuring the optimal/sub-optimal. I’d love to hear it.

    Since you didn’t expressly limit yourself to the senses of the word, would you be able to give an exhaustive list? I’d like to understand the full meaning/breadth of the copyright clause as understood by legal minds (I assuming you’re an IP lawyer). And please link to your paving of streets vs parking lot – I’d like to read it.

    You realize that software is built on software is built on software. If it wasn’t copied & improved upon, software would still be written in assembly language. So unlike other fields, copying software doesn’t take away from the original – it’s in fact one of the pillars (code re-use) of software (unlike perhaps other fields). So the fact that you don’t see that software is different is perhaps a lack of expertise on your part regarding software.

    When you use [i]more value[/i] do you have some way of rating/measuring them? That way I can speak in terms of that.

    And far as patent law not being fractured – I agree. The law, isn’t. But there’s definitely case law on software – (Alice?) – so in reality, there’s legal room to treat patents in different fields differently.

  43. Anon October 10, 2018 9:50 am

    The adage “out of sight, out of mind” applies here to me – my apologies for dropping the conversation.

    If you are still following this, let me know and I will reply, otherwise is will try to tab this under “come back to LCM” for retrieving for a future conversation.

  44. LazyCubicleMonkey October 11, 2018 9:35 am

    I am still following this. Although it’s probably not ideal to have a general discussion like ours as answers to a specific post. Better than nothing nothing. Are there forums here?

  45. concerned October 13, 2018 7:14 am

    FYI: An author approached me for his upcoming book to incorporate my story. The author said it was the story he was hoping to find.

    I will also be in front of U.S. House Representative Steve Stivers, co-sponsor of the Stronger Patents Act. Representative Stivers just happens to be the representative of my district.

    I feel that my story is the “poster child” of the abuse on the patent system. To what extremes should society go to reject a patent based on opinions not expressed by Congress (my first article)? And at what cost to society (my second article Patent Uncertainty- Real Ideas, Real People, Real Harm)?

    The USPTO and courts are advancing ideology, not law which has been currently written since 1952, not official memos which have been currently written within the last 2 years, or even case law- only the bits and pieces that favor a rejection are quoted and twisted, the balance of the context of those same court cases are discarded.

    101 is an enabling law to get a patent, not a provision to use as a be all/end all to reject patents.

  46. Anon October 17, 2018 8:09 pm

    LCM,

    Many apologies for the long delay.
    You ask: “ So in your view, what is the discussion that goes on there?

    I am not sure if this is a genuine question. Quite clearly, the discussion there (by and large) is simply a running anti-patent screed. FAR too many opinions of law that are simply not only UN-informed, but are MAL-formed.

    As to “ why not have everything automatically patented (similar the way copyright works).”:
    1) I have stated many times now that you cannot confuse copyright and patent. You (yet again) do so.
    2) The aspects being protected call for different actions within the laws offering protection. For example, copyright in dealing with expression runs into other “expression” laws (notably the First Amendment) which generate Fair Use concerns not present in patent law. Patent law on the other hand is like trespass – one need not be aware that one is trespassing in order to be guilty of trespassing.
    3) Everything (possible) SHOULD be patented. But this does NOT excuse the fact that we have a Quid Pro Quo for patenting. You appear to want to use the truism far too far, and you do so without recognizing other fundamental aspects of patents. Such is just not a balanced (and balanced in view of patent fundamentals) view.
    As to “ And since you mentioned optimal, then you must have some way of measuring the optimal/sub-optimal. I’d love to hear it.” you are just circling back to a point that you already attempted (see the exchange at 37/38) – and this is NOT a part of our last exchange.
    I am sorry that I do not have a link to my paving analogy. In a nutshell, many want some type of “orderly grid” of paved streets, and such carries with it an aesthetically pleasing and functional view. However, the nature of innovation is NOT suited for such “order.” (many sources for this exist, and have helped form my views over several decades; but I recommend the BBC television series “Connections”: https://en.wikipedia.org/wiki/Connections_(TV_series)
    Instead, given the nature of innovation, the ability to turn on a dime, to connect any one point with any other point instead provide the analogy of a parking lot. Of course, a parking lot is also of extreme utilitarianism, but it pales in the “aesthetic” department when compared to a grid of streets. One point of the analogy then is to provide a context for NOT falling for an aesthetic appeal (especially if one truly understands the nature of innovation).

    As to “ So the fact that you don’t see that software is different is perhaps a lack of expertise on your part regarding software.” No. Again. As I previously told you: software is by no means the only such thing so built, and in fact, most all knowledge is built on what went before. It is not me having a lack of expertise – it is you that lacks a breadth of understanding. Separately, law is not my first career, and I well understand software as being a business unit leader dealing with medical device innovations, I had several projects in which software development played a critical role in the overall efforts. This is just a point that exhibits that it is you that is stuck in a viewpoint, and that viewpoint is not helpful – for you. You so desperately want software to be different, and thus somehow deserving to be treated differently under the (non-fractured) patent law. That is just not a rational viewpoint.

    And with your comment of “ When you use [i]more value[/i] do you have some way of rating/measuring them?” you are again slipping back to wanting to have some sort of “counting angels on the head of a pin” discussion – twice now attempting to jump back to comments earlier in our exchange.

    As to “ But there’s definitely case law on software – (Alice?) – so in reality, there’s legal room to treat patents in different fields differently.” – please take note that one of the problems with such a view is that THAT does not acknowledge the deeper problems with the action of the Court. The larger issue to be kept firmly in mind is that the scoreboard is broken. Once you realize that, then you can stop trying to tell me about a score from a broken scoreboard. I suggest instead of acting like a mindless “litig8or,” that instead you take note of the points offered in the discussions as to WHY the scoreboard is broken.

    One of the best “gifts’; earned in law school (or in most any school that teaches critical thinking) is that one does NOT accept blindly any and all things. In fact, if you have noticed some of my other writings, I make it a point that attorneys carry an ethical duty to NOT accept things blindly. When an attorney is sworn in, the oath that is sworn to – in most all States – carries with it an affirmation that the Constitution comes first – over and above any and all of the three branches of the government. Most people (and one can go back to some of the Schoolhouse Rock videos) recognize that the three branches – each and every one – has a system of checks and balances, and not a one of them is supposed to be “higher” than the others, let alone above the Constitution.

    There is a reason why I adamantly point out the “why’s” of the broken scoreboard of the Court. Not only is such correct (a correct view of the underlying laws, nature of the provision of authority in the Constitution to but one single branch, and an understanding of the checks and balances, as well as the limitations of each branch), such is also an ethical duty.

    Concerned @ 45.

    Your last sentence rings a chord: 101 was originally written to be a rather low bar and welcoming gate. There was but two aspects to 101:
    1) utility – of the sort that falls to the Useful Arts (as opposed to the Fine Arts), and
    2) fitting into at least one of the statutory categories (as you may well be aware, many innovations can actually easily fit into MORE than one statutory category; See Chakrabarty).

  47. LazyCubicleMonkey October 18, 2018 9:11 pm

    Anon,

    All good on the delay. We both have professional & social lives 😉

    Because my attempted formatting was a fail, I will address your points in order without quoting/repeating.

    Regarding the discussion that goes on there, this is a genuine question. In particular, I’m trying to understand if you’re going by what the authors write, how the commentors respond, or the ideas espoused by individuals in the general forum – (I don’t follow the latter). There are some differences between the first two and I’m trying to understand under which of those groups you lump everyone there under.

    1. I understand the difference between patents & copyrights quite clearly. I am not confusing them – I’m trying to understand how far you’d be willing to take the view of patents are valuable.
    2/3. You’ve pointed out some obvious (legal) problems with patenting everything – putting those aside, would you still take the view that everything should automatically be patented?
    3. I understand the Quid Pro Quo aspect of providing the world with the knowledge of the invention. However, when one attempts to learn about software (to build on it, “invent” more software, etc), the first (second, third, & 5th, etc) place people look is online. The US patent office is no longer the best place to share knowledge of software. As such, the ‘promoting’ aspect of the patent system falls far short of online resources available at the click of a button. If the goal is promoting/spreading the knowledge with the world contained in the patent, there are many better places to do it.

    Another question for you: if the cost of R&D is negligible (compared to the cost of implementation)/non-existent (a competitor who ‘copies’ the invention would not have any inherent advantage in the marketplace relative to the original inventor) and there are better ways to spread the knowledge contained in the patent, what purpose would a patent have? (In light of the copyright clause)?

    Regarding counting angels on the head of a pin – I was specifically referencing two instances:
    1. Post #40 when you stated that my logic is inferior. The corollary to that is that your logic is superior. What metric are you using to make that statement? Otherwise, one can only state that the logic we’re using is different, not inferior/superior.
    2. In post #41, you use “value” (in double quotes to be fair). If you’re using that term (as opposed to merely echoing back my statement, in which case ignore this point), then there must be some metric you’re using? I’m inquiring what that metric is.

    I have not seen Connections – and they don’t seem to be available on Netflix/Amazon. I do understand that innovation isn’t a clean, straight line, and could be a messy affair.

    My software experience does enlighten my view – I do think that software is different – unlike other subjects, the cost of R&D is negligible/non-existent compared to implementation. In fact, they tend to be one & the same. As such, I pose my previous question to you once again: If the cost of R&D is negligible (compared to the cost of implementation)/non-existent (a competitor who ‘copies’ the invention would not have any inherent advantage in the marketplace relative to the original inventor) and there are better ways to spread the knowledge contained in the patent, what purpose would a patent have? (In light of the copyright clause)?

    Regarding your opinion of Court rulings and that the scoreboard is broken – I think that the scoreboard was broken (by the Federal Appeals Court) and the Supreme Court is doing it’s best to fix it. Based on my (admittedly simplistic) reading of the copyright clause, it’s the Federal Court that’s erring by hampering (instead of promoting) (software) innovation. So yes, the Constitution should come first – and the Supreme Court is adhering to it much closer than certain courts below it. I also understand that there are 3 branches of government (that are all bound by the Constitution). I’m also glad that you don’t accept things blindly – so which laws did the Supreme Court violate with their ruling? And finally, I’d like to leave you with another question: what law could Congress pass that would be deemed unconstitutional (in your view)? How extreme would it have to be for it to be counter to the copyright clause of the Constitution?

  48. LazyCubicleMonkey October 20, 2018 11:35 am

    Just in case my previous comment didn’t go through, trying to submit it again:

    Anon,

    All good on the delay. We both have professional & social lives 😉

    Because my attempted formatting was a fail, I will address your points in order without quoting/repeating.

    Regarding the discussion that goes on there, this is a genuine question. In particular, I’m trying to understand if you’re going by what the authors write, how the commentors respond, or the ideas espoused by individuals in the general forum – (I don’t follow the latter). There are some differences between the first two and I’m trying to understand under which of those groups you lump everyone there under.

    1. I understand the difference between patents & copyrights quite clearly. I am not confusing them – I’m trying to understand how far you’d be willing to take the view of patents are valuable.
    2/3. You’ve pointed out some obvious (legal) problems with patenting everything – putting those aside, would you still take the view that everything should automatically be patented?
    3. I understand the Quid Pro Quo aspect of providing the world with the knowledge of the invention. However, when one attempts to learn about software (to build on it, “invent” more software, etc), the first (second, third, & 5th, etc) place people look is online. The US patent office is no longer the best place to share knowledge of software. As such, the ‘promoting’ aspect of the patent system falls far short of online resources available at the click of a button. If the goal is promoting/spreading the knowledge with the world contained in the patent, there are many better places to do it.

    Another question for you: if the cost of R&D is negligible (compared to the cost of implementation)/non-existent (a competitor who ‘copies’ the invention would not have any inherent advantage in the marketplace relative to the original inventor) and there are better ways to spread the knowledge contained in the patent, what purpose would a patent have? (In light of the copyright clause)?

    Regarding counting angels on the head of a pin – I was specifically referencing two instances:
    1. Post #40 when you stated that my logic is inferior. The corollary to that is that your logic is superior. What metric are you using to make that statement? Otherwise, one can only state that the logic we’re using is different, not inferior/superior.
    2. In post #41, you use “value” (in double quotes to be fair). If you’re using that term (as opposed to merely echoing back my statement, in which case ignore this point), then there must be some metric you’re using? I’m inquiring what that metric is.

    I have not seen Connections – and they don’t seem to be available on Netflix/Amazon. I do understand that innovation isn’t a clean, straight line, and could be a messy affair.

    My software experience does enlighten my view – I do think that software is different – unlike other subjects, the cost of R&D is negligible/non-existent compared to implementation. In fact, they tend to be one & the same. As such, I pose my previous question to you once again: If the cost of R&D is negligible (compared to the cost of implementation)/non-existent (a competitor who ‘copies’ the invention would not have any inherent advantage in the marketplace relative to the original inventor) and there are better ways to spread the knowledge contained in the patent, what purpose would a patent have? (In light of the copyright clause)?

    Regarding your opinion of Court rulings and that the scoreboard is broken – I think that the scoreboard was broken (by the Federal Appeals Court) and the Supreme Court is doing it’s best to fix it. Based on my (admittedly simplistic) reading of the copyright clause, it’s the Federal Court that’s erring by hampering (instead of promoting) (software) innovation. So yes, the Constitution should come first – and the Supreme Court is adhering to it much closer than certain courts below it. I also understand that there are 3 branches of government (that are all bound by the Constitution). I’m also glad that you don’t accept things blindly – so which laws did the Supreme Court violate with their ruling? And finally, I’d like to leave you with another question: what law could Congress pass that would be deemed unconstitutional (in your view)? How extreme would it have to be for it to be counter to the copyright clause of the Constitution?

  49. Anon October 23, 2018 5:42 pm

    LCM,

    On several fronts now, you are attempting to go in circles and talk about counting angels on the heads of pins. I’ve told you multiple times, that is not a discussion that I am having. That might be good in person (and over a couple of beers), but simply does not lend itself to this forum. Looking back (merely quickly) at posts 40 and 41, for 40, the point of inferiority is that you are not addressing the law as is (and wanting merely to discuss alternative possibilities of law). Further, the inferiority comes from understanding (or your lack thereof) of how blocking (which you continues to view as purely a negative) is actually a positive and spur to innovation – and the further notion that this understanding of innovation is NOT limited to software (as you continue to show attempts at so constraining) – as my comment at 41 so indicates.

    Other items tend to reflect this desire of yours to have a more “touchy-feely value” conversation, and end up with you making statements that indicate that you do not understand the differences (and similarities) between patents and copyrights – no matter how much you may want to claim that you do.

    You seem “caught” in a notion that any expression may be made subject to copyright, and want this seemingly same type of “everything” in view of patents.

    This shows a fundamental lack of grasping that patents and copyright protect very different aspects of things. As I have pointed out, for everything to which patents apply (that is, utility within the Useful Arts) – and I do mean everything so indicated – patents would be a good idea. But there is NO SUCH THING as “automatically granted.” This shows your lack of understanding of that term and why patents are examined while copyright is examined less (and there is a subtle point here that you may not grasp in that even for copyrights, the notion of “automatic” may not be as you think it to be). I hesitate to go into that, because it is a nuanced point, and may confuse you as to the very different type of examination that occurs for protection for utility as opposed to protection for expression.

    You seem to want to insist that the existence of some better place to learn necessarily means that patents are not appropriate.

    That is simply not so and has NO place in this legal discussion. There is no hint of a requirement that the “promotion” aspect bearing on promotion in a marketing and sales effect (as opposed to a linear or even non-linear promotion as in a technical “bettering” effect) MUST be present. I would hazard a view that the US patent office NEVER was the “best” place to share knowledge of ANY particular art. Such is, was, and ever shall be simply not a requirement.
    You may think that you have a “point” there, but you do not.

    Your “another question” vis a vis cost and “(In light of the copyright clause)” is not really “another question, but is merely another attempt at the point that you think is there, but is not.

    What goes on at the Ars Techinica, Slashdot and Techdirt sites that I am referencing is the plethora of ill-begotten hatchet jobs on the patent system that get the (current) law wrong, and which does not more than feed am anti-patent frenzy of commentators with even less knowledge and understanding of patent law. Seriously, I will sometimes venture there to read the comments to just chuckle at how absolutely clueless some of these people are. The presence of an echo chamber built on the ramblings of people who so clearly have more feeling than critical thinking on the topic simply is NOT a place to foment any views on the subject wherein both law and technology understanding are needed.

    As for the Connections show – try Youtube. (“connections james burke” works well)

    As to your clinging to software as “different” with the proposition of being different in at least cost of R&D being neglible/non-existent, I suggest that you need to understand your own technology a lot better (and wear the hat of the person responsible for bringing items to market. Instead of what you may mean to indicate, what you are saying is that pure copying (of the work and effort expended by others) MAY be viewed as virtually cost-free, but someone has to pay for what is being blatantly copied, and if no one is actually paying for it, then (outside of a VERY limited set), any meaningful development (the “D” of R&D) would be close to nill. Trust me, in my former role as a business unit manager in a medical products development house, we charged – and made a lot of money – for the very R&D that you are suggesting is there “free.”

    As to broken scoreboards, I have to chuckle at your attempted parroting and blaming the Federal Appeals Court. You have ventured into a legal area of which you have close to zero understanding. What you claim as the Supreme Court “trying to fix” has no legal basis in reality.

    Again, you insert “hampering” without understanding what drives innovation.

    You have based your “legal analysis” entirely on your feelings – and this is very transparent. What exactly is it that you think that the Supreme Court is allowed to do under the law as written by Congress?

    I have explicated the Constitutional infirmities of the actions of the Supreme Court on many many many threads, but to summarize here, the Supreme Court – in their hubris and desire to WRITE patent law have mis-stepped in three major (legal) ways:

    1) In their eagerness to write law, the Supreme Court goes beyond their Constitutional authority in that the very basis of WHY they step in is merely a conjectural, projected “may someday happen” (which necessarily includes the notion of “may not happen”). The judicial branch – like the other branches – are branches of limited power. The judicial branch needs to have a PRESENT case or controversy in order to have authority. By postulating the basis for their action as some mere possible future event, they violate that present case of controversy from which they have authority to act.

    2) In their eagerness to write law, the Supreme Court goes beyond their Constitutional authority as far as PATENT LAW goes. Our Constitution allocates the power to write patent law explicitly to only branch of the government – and that branch is not the judicial branch. Now, if you had studied Constitutional Law, you may realize that one branch MAY share its authority with another branch, but any such sharing is heavily constrained. What the Supreme Court has done in the broken scoreboard sense is that they have acted as if the Act of 1952 never happened. It is critical to understand patent law based on that particular act, as it was THAT Act that created the actual modern day 35 USC 101. Sure, there was a similar paragraph in paten t law prior to that date, but that similar single paragraph was architected by Congress to REMOVE what the Supreme Court had been doing in patent law in the 30’s and 40’s and expressly opted for a new section of law (obviousness as codified in 35 USC 103) as opposed to “Gist of the Invention,” “inventive concept” or any of a dozen or more other terms used by the courts prior to 1952.

    3) In their eagerness to write law, the Supreme Court has written a law that is Void for Vagueness. Even if we allow for the sake of argument that point 1) and/or point 2) are somehow “OK,” the Court has written a law that is not capable of being applied or known a priori. Most often this concept adheres to criminal law, but that is not solely the case, and in fact, any time life liberty or property are affected, the legal notion may come into play.

    As to your last questions, “what law could Congress pass that would be deemed unconstitutional (in your view)? ” – this too I have answered – and answered on more than one occasion.

    In one instance, law written by Congress has recently been deemed unconstitutional. Outside of the Patent Clause (what you want to call the Copyright Clause), the laws dealing with another form of intellectual property protection under the Lanham Act have had a portion deemed unconstitutional. We need not delve deeply there, but such is a ready example.

    Closer to home, I have also postulated that even Congress (being the correct branch), still itself does not have unfettered authority. For example, once an item is created, and the nature of that item is established (for direct example, the nature of that item being property), then OTHER portions of the Constitution kick in and provide OTHER Constitutional protections of which even Congress may not violate. This comes up in discussions of the AIA and the post-grant actions. The area of law implicated is called Takings Law.

    And to your last question: “How extreme would it have to be for it to be counter to the copyright clause of the Constitution?” – “extreme,” is not a helpful word. “Extreme” carries an emotional weight that is not necessary. If a law – written by Congress or written by the Court – violates the Constitution, it matters not at all how “extreme,” one may feel about it.

  50. LazyCubicleMonkey October 24, 2018 12:40 pm

    Anon,

    It seems that we’re going to go round & round in circles on some of the issues – but the main problem seems to be that we’re both talking past each other. And since the tone of the discussion is deteriorating (whether that’s due to frustration of (not) getting the point across or for some more malevolent reason), it no longer seems as productive as it was in the beginning.

    Before dropping off, there is one point I want to address – specific to software being different – that you seem to completely misunderstand yet insist that I’m the one that’s out of my element – specifically as it relates to actually writing code. Bringing a (software) product to market does not make you qualified about writing software & coding – based on what you wrote.

    1. All code is simply long list of mathematical instructions (eg: jumps, conditionals, bitwise operations, boolean & comparison & arithmetic functions, etc (think chip-instruction set)). As such – many common patterns start to appear – (iterating through a loop may require several or more of a combination of jumps, conditionals and boolean/arithmetic/comparison functions). For code to become meaningful, these code building blocks are built on top of each other in often novel & unique ways. Combine a large enough unique combination of these code blocks expressed in code – they become copyrightable – wholesale copying of which becomes a copyright violation (unless it’s under a copy-left license). However, there’s no new primitive blocks (mathematical instructions) being created (Any new ones that are would be exclusively by chip manufacturers). All code is some variation of these basic building blocks. These blocks are continually copied by everyone – even by the coders on your project. I guarantee it. Combining these blocks to make larger & bigger blocks is what writing software is. None of these are particularly novel (they would not fall under the ‘R; of R&D, just the ‘D’). What can be novel are the mathematical functions/formulas that are encoded in the software, not the actual software – which is simply an exact representation of those mathematical steps in some coding-language-specific syntax made up of the pre-existing primitive instructions mentioned at the top. (That’s why I kept asking about math, applied math, and maths and how patent law distinguish the three). In light of that, all software is in some way copied. The work is putting it together in a meaningful way.
    As such, the below statement address copying in the sense that the copying is of code-blocks somewhat larger than the primitive instructions but not actual copyright violations (unless you consider examples & answers on places like but not limited to stackoverflow to be copyright violations):

    2. Unless you’re using ‘someone has to pay’ as a form of punishment for copying – no one has to pay (again) for what is blatantly copied. That’s the nature of copying software. If someone writes a piece of code, copying that code will NOT reduce the value of the original software unless that code is used to make a competing product. Snippets of code can be shared across technologies/sectors/products that don’t compete with each other. The original code was written & paid for regardless of whether it will be copied or not at some point in the future. That cost is fixed.

  51. Anon October 24, 2018 1:04 pm

    LCM,

    We are to an important degree talking past one another.

    Let’s call it a day then and continue to try on individual new topics.

    (If some of the above come up, we might try again).

    Apologies for any “gruffness,” as no malice is intended.

  52. Babak Nouri October 24, 2018 1:14 pm

    With regards to the first point (.1) – That was a very good technical analysis of the nature and substance of software code, in general. Thanks for articulating it.

  53. Anon October 24, 2018 8:01 pm

    It’s a decent – albeit far too sinmplistic – explication.

    Coding – as provided here at an atomic level, is quite close as an analogy to actual constituent parts of an atom.

    Where the different forms of protection inure (for different aspects), is at a “configuration of” level.

    There is very real teleological danger in the “just math” or “just a list of instructions” view when in reality software innovation is not the individual “protons, neutrons or electrons.”

    It must be remembered that software is a “ware,” being patent-equivalent to the other “wares” (hardware and firmware).

  54. LazyCubicleMonkey October 24, 2018 9:59 pm

    While software may be patent-equivalent to other “wares”, I was making the point that it shouldn’t be because it’s different. A bit of circular reasoning…

    But let’s explore this atomic analogy and see where it takes us:

    Atoms are obviously not patentable – but complex molecules (that are not found in nature I assume) are. Just like primitive building blocks of software aren’t patentable. (Are the transistors or series of transistors that generate those operations patentable though? Maybe AND/OR/NAND/etc gates are the electrons, protons & neutrons? But then, are those patentable?).

    I think I strayed a bit off course. Let’s take a complex patentable molecule – the molecule & the model of the molecule are patentable – and are one of the same. In software, the underlying mathematical model/function/etc is the patentable protection. Right? Because if it’s the software, then the same exact function achieved in a different programming language would bypass the patent? So the software is simply the expression of the underlying model/function/etc. The way I see it, the atomic level analogy falls apart.

    At which point we’re back to software being unique from other ‘wares.

  55. Anon October 24, 2018 10:15 pm

    No – see the writings of PoIR as to the equivalency across programming languages.

    The “wares” are patent equivalent.

  56. Anon October 24, 2018 10:25 pm

    Also, you slip back to the teleogical error of “math,” when — and it should be clear — the functionality comes from the “configuration of” and NOT the simple atomic math.

    (Think of this, if you like, as an indicator of the difference between applied math and math)

  57. LazyCubicleMonkey October 25, 2018 12:03 am

    To understand how you differentiate math & applied math (& maths) in regards to patent law, I’d like to bring you back to a question I’ve asked previously:

    For example, take matrix multiplication – do you consider that math or applied math? What if it’s used to solve a set of equations the solutions for which are needed to supply the constants to optimize a product?

    I’m not familiar with the writings of PoIR as to the equivalency across programming languages. From a functional standpoint, I am familiar with being able to accomplish the same software goal in whatever touring-complete programming language is chosen for the task. As such, it’s the pseudo-code that’s being patented. And what is pseudo-code, if not a specific list of (perhaps higher-level) mathematical instructions steps taken by a computer to achieve the desired goal?

    Perhaps you can clarify if (and how) “configuration of” in this software context differs from a series of steps/instructions that are comprised of simple atomic math.

  58. Anon October 25, 2018 6:49 am

    Your question will not be answered (and certainly not to your satisfaction) as your immediate reply shows that you are unable to break away from the teleological errors of “software is math” and “software is list of instructions.”

    Return to the atomic model.

    Realize that when you arrive at a “configuration of” you have arrived at a purposeful “use of” that puts lower level items together to do something. It is the putting together to do something that is the teleological key. The distinction is cleaner than you suppose: have you made a “configuration of” something that has a utility?

    Then turn and look at the words of Congress in 101:
    There are two and only two (low bar) requirements there:
    1) utility (of the Useful Arts), and
    2) the innovation being of at least one of the statutory categories.

    Software — as a “ware” — is a purposeful (that is, for a utilitarian purpose) manufacture of (that is, a “configuration of”) lower level elements.

    Once you grasp this simple alignment; then stop. All further resistance is merely a reflection of the Lemming effects.

  59. LazyCubicleMonkey October 25, 2018 11:05 am

    It seems we’re once again talking past each other. You’re defining software by shoehorning it into how it fits into patent law. Which is circular reasoning – it’s a ‘ware because you define it in such a way (despite the nature of what software actually is) so it becomes a ‘ware.

    But software can stand on it’s own, independent of patent law. And that’s how I’m defining it – how it stands on it’s own. Software *IS* a list of instructions, regardless of how you want to define it in regards to patent law. Ask any programmer/software engineer on what software is – you’ll get some version of a set of mathematical instructions.

  60. Anon October 25, 2018 12:54 pm

    I am defining it by what it is in a teleological manner.

    You happen to not like that.

    Sorry, but your further statements are not true just because you don’t like the result.

    (It’s not circular reasoning, by the way)

    Your “list of instructions” and your “just math” are NOT “software standing on its own.” “Just asking” is NOT sufficient, as you are “just asking” those most drunken on the anti-patent Kool-aid (you seem to want to “separate the legal aspect,” but that is not what you are doing)

    Software “standing on its own” is that it is a manufacture by the hand of man to be a machine/system component.

    That IS what software is. It IS a “ware” — and nothing more (or less) than that.

    It is built for a purpose. You seek to ignore that very teleogical foundation in your “on its own.”

    It’s not “law” that you are separating, it is reality that you are separating. Take computers away, take the basis of the “ware” away, and you — quite literally — have no topic at all to discuss. You confuse “coding aspects” and omit the larger picture of what the manufacture is (and why there is such a manufacture to begin with).

    This is LESS a “talking last” and more a refusal of you to acknowledge a basic reality of the item being talked about.

  61. Anon October 25, 2018 12:58 pm

    To put it directly:

    The “ware” aspect is NOT an artifact of attempting to place this within patent law. The “ware” aspect comes from an understanding of the physical reality of computing machines.

    I find your characterization disingenuous.

  62. LazyCubicleMonkey October 25, 2018 8:34 pm

    I understand the physical reality of computing machines. I also know that software is NOT itself a computing machine, only a necessary component of one.

    I’m still not sure why you’re trying to define software in a teleological manner (based on what it’s purpose/end goal is; I did end up learning the word teleological after you first used it, thank you for that) instead of the actual definition of what it is – the one I provided; the one wikipedia uses: “Computer software, or simply software, is a collection of data or computer instructions that tell the computer how to work…”

    So while software “is a manufacture by the hand of man to be a machine/system component” is an accurate statement, that’s not what software is, only that it’s made by man and it’s purpose. If someone asks you to define a bicycle, do you say “man-made machine that takes you from point A to point B”, or like the dictionary: “a vehicle composed of two wheels held in a frame one behind the other, propelled by pedals and steered with handlebars attached to the front wheel.” So the purpose of what it’s built for is separate from what it actually is. I find you trying to define something by it’s purpose a disingenuous way of defining something.

    I’m not sure how much common ground we can have if we can’t even agree on the definition of software.

  63. LazyCubicleMonkey October 25, 2018 8:39 pm

    If you define software just for it’s purpose, then the code generated by a program that generates random snippets of (runnable) code that doesn’t have any purpose would not actually be software by your definition. Yet, those random snippets of runnable code is still software. Yet it has no purpose, and it is not created by man.

  64. Anon October 26, 2018 4:06 am

    code generated by a program that generates random snippets of (runnable) code

    You’ve gone beyond “reaching” in your effort to not accept the plain merit of what I state.

    On top of that, you want to call my teological basis disingenuous?

    Time for you to take a step back LCM. You’ve left reason behind on your Quixote mission.

  65. Anon October 26, 2018 9:18 am

    Further, your attempted analogy with bicycle is deeply flawed.

    A better attempt would have been an analogy to transporting device.

    The (limited) definition then of two wheels etc would then easily be seen as insufficient, as single, double wheeled in other configurations (think Segway), and multiple wheeled — and even non-wheeled — vehicles would not be captured by your attempt.

    Further yet, I should remind you that the first computing devices had NO software at all, and that the “ware” of “soft” is merely a design choice (think ASICS and the like).

    These all are NOT “legal arguments,” and none of these seek to merely place software in a patent law context — quite unlike your own deliberate attempt to engage in a nonsense example (which at best may provide an exception that proves the rule).

  66. LazyCubicleMonkey October 26, 2018 11:13 pm

    It’s telling that instead of addressing my bicycle example, you instead offered an example of your own – one that’s flexible enough that it it can be defined in many ways.

    And while I concede that early computing devices had no software at all, this still fails to address the point that I’m making: What software actually is.

    So, let’s address the point of what software is, once and for all: I’m going with the wiki definition:
    Computer software, or simply software, is a collection of data or computer instructions that tell the computer how to work.

    The longer version is what I posted above.

    What, in your view, is the definition of software? Not the teleological definition of software, but just: what is software. Please provide sources.

  67. Anon October 27, 2018 8:59 am

    It’s telling?

    Software is very much like my (better) example and almost not at all like your constrained example.

    That’s kind of the point that your example was deeply flawed.

    “Tellingly” tells a lot more about you than I think that you may realize.

    Further, the point you concede very much dictates the “ware” aspect of software — which is the point that you are trying do very hard to not accept (and inte11ectual honesty demands that you do).

    Wiki is notoriously poor source of defining – but I see why you want that path, and why you refuse to engage the points I have put to you.

    You merely insist on your fallacies.

    Your mind is not as open as you think.

    The roadblock to your understanding is of your own doing. You will not advance until you engage and accept the points I have provided for you.

  68. LazyCubicleMonkey October 27, 2018 1:50 pm

    With all that, you still managed to skip the part about defining what software is (in your view). Please define software. And since that’s not your field, please provide references.

    Hard to talk about a subject if you can’t agree on a common definition.

  69. Anon October 27, 2018 9:14 pm

    I have skipped nothing.

    That you don’t like my definition is a “you” problem.

  70. LazyCubicleMonkey October 27, 2018 10:06 pm

    Can you explain if there’s a difference between a definition and a teleological definition? If so, can you explain why you insist on providing the teleological definition instead of an actual definition?

    Also, can you please provide references for your definition of software? Being as you’re not a subject matter expert (of software that is), you can understand my skepticism why I should trust your definition on the subject.

  71. Anon October 28, 2018 10:37 am

    Gene,

    Not sure your moderation is active on a thread this deep, but a response has been nabbed in the filter for an improper email address (my bad – a typo).

    Is that recoverable?

  72. Gene Quinn October 28, 2018 11:29 am

    Anon @71-

    I’m not seeing anything in spam or trash. Did it just take a moment to post, or is it lost in the ether?

    -Gene

  73. Anon October 29, 2018 9:05 am

    Thanks for trying Gene,

    It was (yet another) rebuttal to LCM, contrasting his position with mine and showing that mine is the better one, based in reality, and that he continues to shade the discussion based on the natural consequences of reality (and history) solely in regards to the neccesary impact in laws for intellectual property protection.

    It is a bit of “going in circles,” as my position has been provided a number of times now and LCM is simply avoiding the points I have presented.

  74. LazyCubicleMonkey October 29, 2018 11:03 pm

    I’m not sure what your previous post was, but it seems once again that you forego the questions that are asked. I’m not sure what the reason is – but it’s becoming painfully obvious that your avoidance regarding basic questions of what you think software if (vs what software actually is) is quite telling.

    Do you think that it’s a coincidence that the majority of undergrad classes for comp-sci majors have nothing to do with coding, and everything to do with abstract math? Besides being a product manager of a product that has software in it, what qualifies you to talk about software? Consider that the same lack of legal knowledge that you see in me (and chide & teach me as a result), I see the same lack of software knowledge in you. If years of schooling give you that pedestal for law (and I respect that), why won’t you give me the same respect for years of schooling in comp sci? Unless it’s something else that gives you that legal pedestal?

    As much as you hate on the arstechnica crowd about their lack of understanding of the law (perhaps rightfully so), it seems painfully obvious to anyone from a software background that there’s a giant lack of understanding of what coding/software is here – your constant avoidance of basic questions regarding the nature of software only confirms that view. Your insistence of what you (incorrectly) think software is furthers that point. So we’re going to keep talking past each other – the only difference is that I actually acknowledge when I’m out of my element; and willing to learn when it comes to it – you do not.

    Until you really understand what software is – what each line of code is actually doing underneath the covers – it seems this conversation is fruitless. If you’re genuinely interested in learning – let me know. I can direct you to some great resources that will hopefully get you a clearer understanding of what you’re dealing with.

  75. Anon October 30, 2018 10:56 am

    LCM,

    You remain in error. It is NOT that I “ but it seems once again that you forego the questions that are asked.” I have simply answered those questions in a manner that YOU are refusing to accept.

    THAT is a YOU problem.

    The avoidance here is from you. I need NOT embrace what you want me to embrace, I need not provide an answer according to your constraints because – as I have shown – my answers are better than what you want.

    Better from a reality standpoint.
    Better from a historical standpoint.
    And yes, as a consequence, better from a legal standpoint.

    So again, you state “is quite telling,” but mis-play that notion and what is “telling” is NOT what you think it is.

    You AGAIN go “sub-atomic” with the plain desire on your end to focus on the protons, neutrons, and electrons rather than the configuration of these items. You do this TWICE in your last response alone:
    – “ majority of undergrad classes for comp-sci majors” and
    – “what each line of code is actually doing underneath the covers

    The sub-atomic is NOT what software IS – you want to focus on the sub-atomics of the tools of what software is comprised of.

    You do NOT acknowledge the very weakness of your own position, and instead, you seek to promote a FALSE sense of your own “better knowledge” even as you fall prey to KNOWN (and shared) fallacies.

    You are out of your element – even IN your element. Your focus is NOT on the configuration, the composition that achieves utility, the composition that ALSO achieves copyright protection.

    No. What you want to focus on is something sub-atomic, that in and of itself – at the level that you want to focus on does not even achieve copyright protection. You do not respect the reality of which I share with you – that you are have engaged in fallacies and cannot break free of those fallacies.

    I am confident that no matter what “great resource” you share as to the protons, neutrons and electrons that you like to play with, those same great resources will – at the end of the day – show MY position in that the configuration of, the MORE THAN just the protons, neutrons and electrons, are what actually provide the utility that is what is protected by patent law.

    You are confused as I avoid merely the trapping of the fallacy that you yourself are ensnared in. This is NOT a case of each of us talking past the other. I understand full well what you are talking about, and it is not “talking past me” as much as it is my understanding your limitations of HOW you are trying to spin things.

  76. LazyCubicleMonkey October 30, 2018 7:13 pm

    I was going to type up a long & harsh response (which I saved so I can post if you’d like), but let me simply leave you with this:

    Do you think it’s a coincidence that the majority of software classes – whether undergrad, grad, or PHD, concentrate on the underlying math – and not the coding, or ‘configuration of’ software. Are all these professionals clueless? What do you think goes on in classes in a comp-sci curriculum?

  77. Anon October 30, 2018 9:57 pm

    Your fallacy remains – get out of the sub-atomic.

    (Maybe you can explain how copyright works, given that you cannot obtain copyright on your own sub-atomic….)

  78. LazyCubicleMonkey October 31, 2018 12:26 am

    You stating that there’s a fallacy doesn’t actually address your lack of understanding that software IS at the “sub-atomic level”. Once again, I ask, what is it that you think that the majority of the classes that comp sci degree requires teach? Or you can skip it yet again – the answer does go against what you’ve been saying.

    And it’s true, copyright cannot be obtained at the “sub-atomic” level. I never stated as such. What I clearly wrote was: “Combine a large enough unique combination of these code blocks expressed in code – they become copyrightable”. Just like a single letter (a processor-level instruction) isn’t copyrightable, a single word (a single statement in a higher-level programming language) isn’t copyrightable, a single sentence is (almost?) never copyrightable (a basic function that uses several statements of a higher-level programming language such as reading in a text file line-by-line), but a paragraph can often be copyrightable (several basic functions chained together in a unique way).

    A book/novel/instruction manual is compromised of many paragraphs – but the building blocks are the same. Letters, words, paragraphs. Hell – even a patent itself is compromised of letters, words, paragraphs. The big difference is that the “sub-atomic” building blocks of software are by their very nature limited to mathematical operations. Anything written in software is simply a sequence of these mathematical operations. It’s one and the same. Can these operations have utility? Of course. Can an integral have utility? A derivative? A multi-variable equation? A step by step sequence of mathematical instructions to solve a real-world issue? They can all have utility. But does that automatically make those step-by-step mathematical instructions patentable?

  79. Anon October 31, 2018 5:44 am

    Your own answer (vis a vis copyright and the “combine enough”) contradicts the position you want with software and sub-atomic.

    It is not MY lack of understanding of software that is on display.

    There is NO “non-answering” on my part that is in the cross-hairs (even if you want to make it appear to be so).

    You continue to want to pretend that software is nothing more than the building blocks of software.

    You miss the gestalt. You continue to embrace fallacy of “just math” even as you admit that copyright does not inure to “just math.”

    In part, this may be because you also want to dismiss (out of hand, and with no cogent basis), the teleogical understanding.

    That is plain error on many levels.
    Factual.
    Historical.
    And, as a consequence, legal.

    There is no spin from you that rectified these errors of yours.

  80. LazyCubicleMonkey October 31, 2018 10:14 pm

    A teleological understanding doesn’t imply an actual understanding – which you’re obviously still lacking when it comes to software. And none of the statements you’ve made show that you have anything but a teleological understanding of software – which means you don’t understand software.

    I’ve made the mistake of answering your questions multiple times while you constantly avoid mines. That’s not really a discussion on equal footing. So until you actually give me the respect of answering my questions, I will no longer answer yours. If you want me to repeat the questions I’ve been asking over & over again, let me know.

  81. Anon November 1, 2018 7:25 am

    Your mistake is in thinking that you have answered my questions while what you have actually been doing is clutching onto the fallacies of software merely being the components of software when viewed from a patent perspective, but being more than merely the components when viewed from a copyright perspective.

    You speak of respect when you have NOT given any.

    It is not respectful to avoid the points I have presented.

    You also (illogically) — and again — misstate the relationship between a teological understanding and some type of “actual” understanding; as if an “actual” understanding can exist that denies the teological understanding.

    Sorry, but any actual understanding MUST include the teological understanding.

    This is not “my” demand either. This comes directly from what it means to actually understand.

    Further, my statements do NOT show that I do not understand what software is. As I have shared, my statements only indicate that I refuse to accept your fallacies of what software is. I have used plain words. I have used historical reference. I have used easy to understand atomic analogies. I have even used your own stated views as to different protections for different aspects of the same item (software) from the same legal clause (Article I, Section 8). It is you that cannot see beyond your own fallacies and contradictions of those fallacies.

    Perhaps the respect that you seek needs to be (first) self-respect of being willing to take my teachings (teological and otherwise) and to recognize the contradictions in your views that I have pointed out.

  82. LazyCubicleMonkey November 2, 2018 8:51 pm

    I agree that actual understanding must take into account teleological understanding. But teleological understanding alone does not prove actual understanding.

    The thing about my position on software is that it’s the same one that is being taught by comp sci courses the world over. But I’m sure you know better than all of them, right? Since you cited so many references and included so many subject matter experts who share your opinion. Plain words and analogies are no good if they don’t hold up if they’re not backed by anything other than your own opinion.

    And based on your teleological definition, one could simply swap out software with math/applied math/maths (a difference you continually cite but refuse to clarify/differentiate whenever I ask for a clarification) and get the same result. A ‘configuration of’ math/applied math/maths would play out the very same way based on your definition. So as much as you argue against it, it doesn’t make it so. Unless of course, everyone is wrong but you and people who believe like you. And I’m not the only one to see that – as spoken by someone from your profession, not mines:
    “The court said, ‘Well, software is just math; you can’t patent math,'” – Stanford legal scholar Mark Lemley

  83. Anon November 4, 2018 8:51 am

    LCM,

    Your choice of “my profession” is someone notoriously anti-patent (Lemley does not PROCURE patent rights, btw).

    He is also dead wrong in what he says and is one of the most unethical attorneys related to the patent scene.

    As to: “And based on your teleological definition, one could simply swap out software with math/applied math/maths (a difference you continually cite but refuse to clarify/differentiate” you have badly garbled these concepts as the ability to “swap out” is tied to the “wares” discussion and not to the differences in math/applied math/MathS position. There is NO such “just swap out” the different discussion points.

    And I also mentioned to you that your “so many teach” is most likely NOT teaching what you think because you continue to engage in a fallacy that software is merely the building blocks of software (for patent purposes even as you contradict yourself with software NOT being the building blocks for copyright purposes).

    Lastly, while you say that you agree that teological understanding must be a part of full understanding, you now introduce a strawman that only teological understanding – in and of itself – is enough for full understanding. No one is arguing for that position. And while you divert with this strawman, you avoid the fact (again), that your view does not stand WITH a teological understanding.

    You continue to give great effort NOT to accept the points that I have provided to you.

    While you have been more polite than most Kool-Aid drinkers, you are clearly not willing to fully engage in an inte11ectually honest manner.

    I suggest that you take some time to think about all of the things that I have provided, and come to a greater understanding — both of my points presented, and of your unwillingness to accept those points.

    You will not learn until you realize that you have things to learn.

  84. LazyCubicleMonkey November 5, 2018 9:45 pm

    That particular quote was his paraphrasing the judge’s decision in the Flook case. Procuring patents is not a requirement to be an intellectual property law/patent expert. Same for having an anti- (software) patent view *cough* Lee Cheng *cough*. It’s one of the things that drew me to intellectual property in the first place – the same group of facts can be presented to different people with each of them coming to a different conclusion. Having a pro-(software)patent requirement to be a patent expert is like requiring historians to be from the same place/people that they’re studying. It may help, but it’s not a necessity.

    It seems that you’re genuinely shocked that someone can be opposed to your position while still understanding the subject matter. I guess you don’t realize that you’re stuck in a bubble. Even a unanimous Supreme Court opinion (Alice) didn’t snap people here back to their senses. Instead, everyone just dug in their heels and decided that it can’t possibly be them, it’s got to be everyone else. And these are the top legal minds of this country. And I’m the Kool-Aid drinker that’s arguing in bad faith?

    Finally, for all your desire to actually teach me something, you avoid my question about math/applied math/maths for the 5th (6th?) time. Claiming that there’s a difference and then refusing to answer questions to clarify while simultaneously being surprised that I’m not taking your points at face value isn’t a winning combination for changing minds. How do you expect to change my mind/teach me things without actually answering the questions that came up due to our discussion I posed in good faith?

    My final attempt to get you to answer a question that I’ve posed multiple times – because YOU brought up this distinction between math/applied math/maths in the first place:
    Take matrix multiplication – do you consider that math or applied math? What if it’s used to solve a set of equations the solutions for which are needed to supply the constants to optimize a product?

  85. Anon November 9, 2018 6:25 pm

    Now LCM, you are just playing rhetorical games – and rather poor ones at that.

    That particular quote was his paraphrasing the judge’s decision in the Flook case.

    Your use here is simply not legally appropriate (given AT LEAST that Flook was cabined by Diehr as per Bilski). Further, as noted, Lemley simply is not one that can have ANY of his words taken seriously. Lemley is a plague for the patent system, while you see him as some type of cure.

    Procuring patents is not a requirement to be an intellectual property law/patent expert.

    Strawman, as I never made such a universal argument otherwise. However, Lemley NOT procuring patents (and having an active bias against them) do happen to coincide in HIS particular case. You attempt to move from a particular case to a universal statement, and while the universal statement may not hold, in Lemley’s particular case, it certainly does.

    Same for having an anti- (software) patent view *cough* Lee Cheng *cough*.

    I have no idea where you are getting this, or what point you are attempting to make.

    It’s one of the things that drew me to intellectual property in the first place – the same group of facts can be presented to different people with each of them coming to a different conclusion.

    You are confusing opinion, informed opinion and merely wanting a certain philosophical endview. When one takes a proper and informed view, the different conclusions are NOT as you think them to be.

    Having a pro-(software)patent requirement to be a patent expert is like requiring historians to be from the same place/people that they’re studying. It may help, but it’s not a necessity.

    There is no logic in your statement. Being pro-patent is merely understanding how innovation works and why we have a patent system in the first place. This is NOT “a help,” and has NOTHING to do with historians being related to the place/people that they are studying. Zero.

    It seems that you’re genuinely shocked that someone can be opposed to your position while still understanding the subject matter.

    Not at all. There is zero shock on my part. None. You have projected an understanding while not showing that understanding and have taken an opposing view WITHOUT understanding, and presumed that actual understanding is there.

    I guess you don’t realize that you’re stuck in a bubble.

    Again – simply not so. There is no bubble that I am stuck in. I fully “get” the opposing view, why they have that view, and the rhetorical tactics employed in attempting to foist that view. If anything, it is you that have displayed the stuck in a bubble effect (and in spades).

    Even a unanimous Supreme Court opinion (Alice) didn’t snap people here back to their senses.

    You presume that the Court got it right. They did not.. That you cannot even begin to see why is very much part of the problem that YOU are having.

    Instead, everyone just dug in their heels and decided that it can’t possibly be them, it’s got to be everyone else. And these are the top legal minds of this country. And I’m the Kool-Aid drinker that’s arguing in bad faith?

    Absolutely you are being the Kool-Aid drinker and precisely because you have not engaged on the merits of the points that I have presented – as you have failed TO GRASP OR EVEN BOTHER trying to grasp the points presented as to why the Court got it wrong. You label this as “dug in their heels” and that is simply not what is going on. What is going on is the clear explication as to why those legal minds MISSED on patent law (and certainly the Court is NOT “top legal minds” when it comes to patent law) – and certainly it is NOT “everyone else” that has to be wrong.

    Your characterization is off in so many ways here.

    As to “…you avoid my question about math/applied math/maths for the 5th (6th?) time.

    Bogus point on your end – as I have indicated fully why I have not gone there – you remain far too unthinking for that point. FIRST grasp the simpler points that I have presented – and specifically, recognize how your own positions simply are not sustainable. Once you recognize that, then we can delve into the differences (and possible overlaps) between math as simple math, applied math (ergo engineering) and the philosophy of math.

    How do you expect to change my mind/teach me things without actually answering…

    I expect you to handle the basics first. Show me that you can do so and then we can move on to the more nuanced items.

    This is not a new or different approach to teaching – in any subject.

    Once you actually pay attention to the points that I have put to you, once you follow those items and respond in an inte11ectually honest manner, THEN we can move on. Until you see your errors already in plain sight, any attempt at helping you with nuance is a waste of time for both of us.

  86. LazyCubicleMonkey November 10, 2018 5:32 pm

    Unlike physics or math equations/theories, legal opinions can’t be proven to the same black-and-white certainty. That’s why subject matter experts are cited. That’s why we have a top court in the land that’s the ultimate legal authority in interpreting the laws passed by Congress.
    And while you can argue that they’re not the top patent legal minds in the country, that can be a good thing. For the same reason we have a civilian leader in the executive branch who is the top military boss, even though generals below him undoubtedly more familiar with the military than the president. When you’re a hammer, everything starts looking like a nail. Having a military general as the leader could potentially make them more biased towards war as a solution, just like having being a patent attorney may make one more biased to rule favor-ability towards patents (patents=good still being a claim that I don’t think you’ve proven. And on that point, since blocking leads to progress, would a hypothetical patent on straight edges in building construction be a good thing? It would force all the architects/builders to only build with rounded/arch-like components…)

    So when all the top 9 justices agree on something, and it’s the law of the land (until Congress passes additional legislation), that is the ultimate authority. And while you can argue that their opinion is un-Constitutional until you’re blue in the face, it stands as the final answer/authority on the matter until Congress acts. As such, stating that their decision is wrong is somewhat akin to stating that 2 + 2 = 4 is wrong. You can hold that opinion, but reality doesn’t bear it out. It isn’t so much the court getting is right, as *MAKING* it right.

    Yet again, you avoid my question – you do realize that everyone has a preferred way of learning/understanding. I’m asking questions that would help me understand points you’ve made. Points you’ve made without explaining them.

    If I say that wine only comes in red & white, wouldn’t it be a fair question to ask me where Rose wine falls in?

  87. Anon November 10, 2018 10:17 pm

    No, LCM, you are not correct in elevating the Supreme Court to be an infallible court.

    It just is not so.

    I also do not accept your “this is the way I learn” attempt to not learn the points already provided before proceeding to a more nuanced point. Show that you can understand what I have already shared first.

  88. LazyCubicleMonkey November 10, 2018 10:28 pm

    And who would be able to judge (as opposed to just have an opinion on) whether the Supreme Court has faltered?

    Not all learning is sequential. Answer my question – if you genuinely want me to learn. Otherwise, why did you make that distinction (math/applied math/maths) if I had yet to learn the other points (you’re referencing) that you have provided?

  89. Anon November 11, 2018 8:55 am

    Your demand “answer my question” runs smack into my condition for answering that demand.

    Show that you can handle the points already presented.

    Your lack of being able to handle those points shows that I should not waste my time in a more nuanced point. THAT is genuine.

    Your choice, of course,…

    As to “And who would be able to judge (as opposed to just have an opinion on) whether the Supreme Court has faltered?

    It’s called critical thinking; and developing an informed opinion (as opposed to merely having an opinion). Also, this too runs smack into your rather odd desire to discount those most informed, with your insistence on not wanting those so informed to be somehow missing some aspect of “patents are bad.” You provide zero cogent basis for your projection of some type of “unfairness” to those most informed. The only visible source of this animus is Ends related: you just want a different conclusion. Your position continues to revolve around what you want and not what has been (already) presented to you.

  90. LazyCubicleMonkey November 13, 2018 9:39 pm

    You can disagree and believe that the Supreme Court decided it incorrectly. How can you make an objective statement counter to theirs if they define objectivity?

    Everything in your statement can just as easily be turned against you. You have (an unfounded) belief that (software) patents are inherently good and are using anything justify those ends. Just that your “informed” status only pertains to the legal realm, but you’re completely lacking in the technical realm. Between the two of us, we could make one informed individual 😉

    If software patents really are novel, why are there so many “infringers” who aren’t scouring patents to “copy” from?

  91. Anon November 14, 2018 12:00 am

    The Supreme Court does not define objectivity.

    Everything in your statement can just as easily be turned against you.

    Not at all.

    Just that your “informed” status only pertains to the legal realm, but you’re completely lacking in the technical realm.

    Again, not at all. There has been no indication of my lack of technical understanding.

    Your “turn against me” does not work like that.

    Maybe, instead of this really bad “logic,” you actually (finally) address the points put to you. You still haven’t done that.

    Your last comment has no meaning – and has no connection to ANY of our discussion. You are not even trying to be reasonable.

    Stop being an ass.

  92. LazyCubicleMonkey November 14, 2018 7:24 pm

    Perhaps the SC doesn’t define objectivity, they do define the law of the land. And since law isn’t a hard science (like math or physics), how does one prove they err’d in an objective manner? I think they faltered in plenty of their rulings (Aereo for example) but how would I prove that in an objective manner?

    You’ve been continuously evading my genuine good-faith questions regarding distinctions you’ve laid out. You can see how it appears that you either have something to hide or aren’t having a good-faith discussion either. So yes, it’s frustrating me (hence the red herring, my apologies) and gives me no incentive to answer any of the questions you’ve been posing (that I’ve tried to answer repeatedly). So… give me an incentive to answer your questions by answering one of mines.

  93. Anon November 15, 2018 2:08 pm

    How does one prove they erred in an objective manner?

    By understanding the law and pointing out points at which their writing violates known principles.

    Just as I have done.

    I have not evaded your “good faith” questions and have now explained why multiple times.

    You are the one refusing to handle things in a good faith manner by evading the points that I have put to you. Not sure why you think you need “incentive” to show that you are even capable of handling a more nuanced item when your existing writings are fraught with contradictions.

    So once again, your demand runs smack into the prerequisite I have put forth for me to meet those demands.

    Still your choice to advance (or not).

  94. Anon November 15, 2018 2:10 pm

    And by the way, a critical item that you need to recognize is that every branch of the government — including the judicial branch and the Supreme Court — is UNDER the Constitution. Your last post indicates that you do not understand this foundational concept.

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