Supreme Court To Review "Business Method" Patents 181
xzvf alerts us to big news on the patent front: the Supreme Court decided today to review the validity of "business method" patents. In particular, the Supremes will look over the "In re: Bilski" case, which we have discussed before. "By agreeing to weigh in on the case, the high court is venturing into controversial terrain. Critics of business-method patents say it was never the intent of the law to protect such things, which in their view are often far closer to abstract concepts or mathematical algorithms rather than physical inventions. Proponents say they are key to promoting innovation in today's knowledge- and service-based economy. ... The court's decision to review the Bilski case caught many observers by surprise. The Bilski patent claims are widely viewed as vulnerable to challenge on a number of grounds, and the sense among some experts was it would make a poor test case. ... The Supreme Court won't hear arguments in Bilski until its next term, which begins in October. A ruling is likely during the first half of 2010."
That'd be "Bilski", not Bilsky. (Score:2, Insightful)
Re:That'd be "Bilski", not Bilsky. (Score:5, Funny)
Re:That'd be "Bilski", not Bilsky. (Score:4, Funny)
Yes, but there's a new patent for doing it on submissions sent OVER THE INTERNET.
Re:That'd be "Bilski", not Bilsky. (Score:4, Funny)
Good News (Score:5, Funny)
[maniacal laughter followed by gentle sobbing]
Re:Good News (Score:5, Funny)
I hear they have drugs for that now.
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I hear they have drugs for that now.
Just smile and say "yes", its better that way...
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I hear they have drugs for that now.
I can't afford them. They're all patented.
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Corporations are people too!
That's great (Score:2, Insightful)
What should happen: The Supreme Court rules against business method patents and manages to eliminate software patents entirely at the same time.
What will happen: The Supreme Court rules in support of business method patents and redefines "prior art" to mean "other US patents that haven't yet expired" at the same time. Lawyers rush to patent levers, gears, buttons (electrical, mechanical, and on clothing), etc.
Re:That's great (Score:5, Funny)
U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war, americans arrogantly call it WWIII despite the non-involvement and borderline non-interest of most of Europe and Asia. Afterward, religious kooks rule the depopulated midwest, supplied with arms by east and west coasters to fight a proxy war.
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U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war...
Are you listening, Harry Turtledove? Or is that you?
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Been there, done that [wikipedia.org].
Comment removed (Score:5, Funny)
I'm in (Score:2)
Let me know when you're ready to start construction.
O RLY? (Score:3, Insightful)
and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised...
Oh really?
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Your black neighbors, who have the rights of citizenship thanks to the damned Yankees very much not staying the hell of your lawns, probably won't share your feelings of Dixie solidarity.
Look, I know y'all love your Stars and Bars, but the war is over. You lost. Deal with it.
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He said Southerners, but he sounds like a Texan to me. There it might actually happen like that; they were the most "Yeah, State's Rights!" as opposed to "Yeah, State's Rights (because it lets us continue slavery)!" of the Confederates. And people of all races born there feel the same way. My only response to that then is: im in ur republic, yanking up your hideaway.
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And while this happens we southerners just quietly build a Berlin style wall at the Mason/Dixon and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised on high say "You damned yankees stay the hell off our lawns!".
We, uh... walk around it?
Emperor Hadrian on line 3.
Re:Collapses (Score:2)
"A method for collapsing the US Economy finally and utterly causing U.S. territories to plunge into war."
Does the RIAA have a patent on their model?
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Tonight we're going to look into the future, all the way to the year...2000.
Re:That's great (Score:5, Insightful)
You do realize that this Court will be nearly identical to the one that decided KSR, which raised the bar for obviousness, don't you? And honestly, Bilski was not a well-written decision, even if you agree with the conclusion. In fact, one of the criticisms of Bilski is that it was just a poorly-reasoned knee-jerk reaction to the Supreme Court continuing to smack down on the CAFC. I won't pretend to know exactly how the Supreme Court is going to come down on this, but I guarantee it will not end up with the Supreme Court making section 101 broader than it was pre-Bilski. Still, don't let that get in the way of your complaining.
[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]
Re:That's great (Score:5, Funny)
[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]
Ha, joke's on you! Thanks to Microsoft, I only had to Bing them! So with that out of the way, U R WRNG.
Anyway, I remember reading on /. about the case that raised the bar for obviousness... And ATT v MS where a Justice said out loud that the court had never held software to be patentable before... So I was very hopeful reading this headline. Thanks for more hope!
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Teh Inrarwebz (Score:2)
This is teh Intarweb, since when do you have to know what you are talking about to share your opinion?
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Civilised world (Score:5, Insightful)
Canada and the UK have both denied business method and software patents, as have the EC (attempts by that corporate lackey Charlie McCreevy notwithstanding). Now that the civilised world has invalidated these types of patents, wouldn't it make sense for the US to follow?
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I'll reiterate something I've posted before: If the US patent system diverges far enough from the global average of rights when it comes to patents then the US market will become too expensive to both develop for and enter into. So anyone who knows how to game the system better will be given a competetive advantage. If you need to engage in market conditions that differ to much from the global average then that market becomes a high risk one. The result could
Re:Civilised world (Score:5, Insightful)
There's a simple reason GM and Chrysler have died (and Ford will declare bankrupcy as well if GM comes out of bankruptcy strong). Protectionism. We've had as much protectionism as possible and not violate every trade agreement signed. We don't standardize crash tests with the world. We don't do emissions with the rest of the world. We don't do lighting requirements with the rest of the world. "We don't have to, we are the US" is the cry from the independent people of the US. And it helped insulate the US market from entrants. We have screwed up CAFE and tariffs on trucks that are so nutty Toyota and others built plants in the US just to get around the protectionism. Yay, we got plants. Oh, but then they weren't in Detroit and put Detroit out of business. Is that a yay or a boo? We do everything we can to not do what any other country on the planet is doing. It's not because we are independent, it's because the Big-3 CEOs paid lots of money to buy Congress and convince them the US way was right, and the rest of the planet was wrong.
So, our non-insulated market with artificial barriers propped up the big-3 about 10-20 years longer than if we has homogonized all vehicle standards with the EU and Japan, but it could only delay the inevitible. The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it. The only thing that would have saved the Big-3 would have been to fire everyone over 40 and start again. They were too much into what market share and profits they thought they were entitled, they forgot they needed to make a product people wanted. Sure, you can blame the unions and such, but there wasn't a union contract that wasn't signed by the big bosses, and they all thought those terms were good. After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.
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The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it... After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.
The problem with that analogy is that IP is not a national industry like the car companies. Because of international agreements like TRIPS, IP is extremely transnational (which in turn is a reflection of the fact that many transnational companies pushed for TRIPS' provisions). Sure, the US benefits greatly from strong IP, because many of our companies sell IP and IP-dependent items around the world. But that's also true of Japan and Western Europe.
Furthermore, up and coming countries like China are going to
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Careful, that doesn't always work. They did that at the moderately well-running shipping company my dad worked for. The result: Within two years they went from 100 trucks and several mills to five trucks (and no, the economy wasn't at fault; they failed during a boom). Essentially they booted everyone with experience and replaced them with a bunch of much cheaper engineers straight out of school. Yeah, th
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Well, we here in the civiliZed world have our own way of doing things, if you hadn't noticed.
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Exactly...
knowledge- and service-based economy
Translation: We dont actually make anything any more therefore business-methods and software patents are all we can make anymore. Stop shipping the god damn jobs to China or India and make things in North America.
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As time moves on (Score:4, Funny)
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we may well have a ministry of silly walks.
Monty Python aside, Americans may already have one. Wouldn't pathologically silly walks [wikipedia.org] be under the purview of the ministry of health [hhs.gov]?
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We don't have "Ministries" in the US. We have "Departments".
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Oh my. (Score:2)
Congress? Please? (Score:5, Interesting)
COPA, Abortion, Gay Marriage, Software Patents, Eminent Domain, Copyright term limits, Privacy Issues/Search and Seizure... does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?
I'm sure everyone else can think of more examples.
More and more the only hope I ever have of bad laws being fixed is that one day it will go before the Supreme Court. I mean, COPA is a "success story", if you can call it that, but just once I want *Congress* to fix these things. :)
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The SCOTUS eminent domain explanation triggered a wave of statutes that redefined the concept at the state and local level. Gay marriage has been handled in the state courts, but not seriously in the federal courts, at least until the recent filing in federal court of a constitutional challenge to California's Prop 8 ban. However, a great many proponents feel that this is the wrong way to be going about it right now, and that getting Prop 8 overturned via another initiative (currently gathering signatures
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where a majority of the voters would vote against bigotry
Wow, a Spinmaster 6000! You must be from the media.
Re:Congress? Please? (Score:4, Interesting)
I would be nice if Congress could send reference questions [wikipedia.org] to the court like we do here in Canada.
OTOH, I have a feeling it would turn into something like "Ok, so you say that would be blatantly unconstitutional. We'll just pass it anyway and hope we can stack the court before a case on it gets to you."
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An advisory opinion [wikipedia.org], as it is called in the U.S., is actually unconstitutional.
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That's why I said "it would be nice if". The constitutional prohibition on it also mentioned in the article I linked.
OTOH, constitutionality is just an amendment away.
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Personally, I find it terrible that ther
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does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?
That's because judges generally don't have to worry about making decisions that might piss off the religious zealots or super-hippies and cost them the next election.
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super-hippies
Would those be hippies who wear capes made out of hemp? Some henna body art, perhaps? Do they have powers, like creating a force-shield of stink?
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Would those be hippies who wear capes made out of hemp? Some henna body art, perhaps? Do they have powers, like creating a force-shield of stink?
No, man, they have the ability to find a hookup anywhere and making a bong out of anything. It's pretty amazing. The stink-field is a, like, downside to their awesome power.
What's "general purpose" vs. "particular" machine? (Score:5, Interesting)
In the Federal Circuit opinion below, they held that a method patent must be tied to a particular "machine" or involve a "transformation" of some physical article. The "transformation" prong of that test left some interesting loopholes open for software patents, because they held that transforming REPRESENTATIONS of physical articles is good enough. When going through old cases, the court noted that a patent for x-ray medical software was okay because the data represented physical objects (i.e. human bones). However, patents for financial systems weren't patentable because dollars and cents aren't tangible articles.
However, the most interesting parts of the Federal Circuit's decision was that they almost completely declined to discuss the "machine" prong of the test at that time. It will be interesting to see what (if anything) the SCOTUS does with this. Specifically, the Federal Circuit said that a patent must be tied to a "particular" machine (so that the method could still be practiced on machines other than the one described). However, we don't really know much about what constitutes a "particular" machine. Up until Bilski, the Federal Circuit relied on "In Re Alappat"... which held that loading particular software onto a "general purpose" MAKES it a "particular" computer. The Bilski holding said that Alappat was now reversed... but in the discussion, they only talk about how other parts of that case were wrong.
So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.
Just as an aside... I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.
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So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.
Logically one would think a general purpose computer would become "particular" enough when the loaded software made it only suitable for the specific task. In other words, a dedicated mp3 playing machine would be particular because it is designed for only the purpose of playing mp3s.
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I think a key difference between a software and a non-software patent should be a test to the effect: Can this be implemented with any computer purchased at the local Buy More? If the patent application can be implemented with commodity, off-the-shelf components, then the unique element in the patent must be software. If the unique element is software, then the patent is a software patent. The nice thing about the commodity, off-the-shelf component test, is that it extends nicely into business method pat
Re:What's "general purpose" vs. "particular" machi (Score:2, Interesting)
Hmm, still not convinced. I still believe business method patents are bad for society. IP in general stifles innovation. It practically removes any possibility of incremental improvement in other people's work. No matter how hard you try, it is impossible to o
Re:What's "general purpose" vs. "particular" machi (Score:5, Insightful)
>>...not ALL method patents are bad...
Hmm, still not convinced. I still believe business method patents are bad for society.
Your "objection" doesn't actually conflict with what he said. He basically said "Not all cars are bad", and you basically replied that you "still believe Humvees are bad". (I first wrote dogs and PitBulls, but changed it to a car analogy :)
Before all of this business methods patent crap and software patents crap, a "process patent" meant an industrial process that physically transformed a physical object to a different state or thing. A physical process to refine ore into metal, a physical process transform graphite into diamonds. You got a patent for inventing a new physical object, or a new physical process for materially transforming a physical object.
As far back as 1876 in Cochrane v. Deener the US Supreme Court defined a process patent as:
an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.
US Supreme Court Gottschalk v. Benson 1972:
Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.
The latest Supreme Court patent ruling was 1981 Diamond v. Diehr, which directly quoted and reaffirmed that line above from Gottschalk v. Benson. Diamond v. Diehr also specifically WARNS that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection.".
In Parker v Flook 1977 the Supreme Court stated Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the 'basic tools of scientific and technological work,' it is treated as though it were a familiar part of the prior art.". For patent purposes, no possible algorithm can ever qualify as novel, no possible algorithm can ever qualify as nonobvious. Software itself is nothing but pure algorithm, no possible software can ever qualify as patent-novel or patent-nonobvious.
The idea that "process patents" somehow could be extended to anything other than physical processes is exactly where patent law went insane. In the twenty-odd years that the Supreme Court as neglected to oversee this field, the lower courts have gone wildly and flagrantly in violation of those Supreme Court rulings. A "business method patent" is not validly a process patent. A "software patent" is not validly a process patent.
I am thrilled to see the Supreme Court finally taking up the issue, however I wish it were a slightly different case. The nature of this particular case is such that the Supreme Court could very easily toss out this patent on narrow grounds, without adequately addressing and reiterating the above Supreme Court quotes, failing to address the thousands and thousands of other business method and software patents that have been issued over the last several years.
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Re:What's "general purpose" vs. "particular" machi (Score:2)
Maybe we must simply accept that some forms of innovation cannot be encouraged in this manner, due to
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So, is a general purpose computer "particular" enough when loaded with specific software, or not?
Well I don't know how the justices will choose to interpret the matter, but if I were hearing this case then I would have to say that "no, it is not" for the following reason:
If a particular program is loaded onto a "general purpose" machine, a computer in this case, thereby rendering it fit for a particular purpose that does NOT foreclose the possibility that one may install any number of additional programs with separate purposes on the same computer, up to the limits of the storage device, such that some
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For what it's worth, I pretty much agreed with Judge Rader's dissent in the In Re Bilski case. He simply argued that the problem with Bilki's patent wasn't that it was a process, but rather that it was an obvious process in light of prior art. We don't necessarily need sweeping new rules from the courts or the PTO... we simply need patent examiners with a clue. Examiners should have enough subject-matter expertise to spot some of these egregious patent claims that have been publicly practiced for decad
Innovation (Score:5, Insightful)
I laugh every time I read this absurd argument. Patents are not about promoting innovation, they are about protecting intellectual property, even if that term is far younger than the patent concept. They are about creating a limited time micro-monopoly in order to stifle competition.
Patents aren't bad, but they have been allowed to get out of hand (Bezos, I'm looking at you). Business method, software, and DNA patents are abuses of the patent concept. Furthermore, the pace of technological advancement is faster now than it ever has been, and will only get faster; patent duration must be shortened appropriately.
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Patents are not about promoting innovation, they are about protecting intellectual property
In theory, patents and copyrights are about both. Promoting innovation is the goal, and protecting intellectual property for a limited time is the means to achieving that goal. The current implementation might be a bit off (read: very broken), but the goal is supposed to be encouraging inventors and artists to continue inventing and creating art.
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Patents are absolutely about promoting innovation. There's no reason to share a design with other companies unless you can be sure they'll pay you for it. Without patents, they could just take the idea and run. Companies would become reliant on trade secrets, and *that* would stifle innovation.
Disclaimer: Business method and software patents, as well as a few other types, are an abuse of the system, I hope the court rules against them.
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I, personally, have taken and implemented designs that I found in (expired) patents many times.
Promoting innovation (Score:5, Insightful)
Similarly to another /.-er's fantasy, I imagine the world when *I* become an overlord and hire my own army of clowns to would slap politicians who say things like:
"Promoting innovation" - SLAP!
"For the sake of the children!" - SLAP!
"Free markets" "The GNP" - SLAP
"It's the Jews" "It's the communists" "It's the Arabs" "It's teh tehrorists!" - SLAP!
"For your safety" - SLAP, KICK, SLAP!
Thanks, Bozo, I needed that.
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"It's my right to download stuff for free!" - SLAP!
"Parents should be responsible for their kids at all times and in all places!" - SLAP!
"The Amero!" "The North American Union" "They're exporting all our jobs!" - SUPER SLAP!!!!!!
Actually I have no real answer for the other two.
Knowledge and Service Based? (Score:2)
News flash! This is not a model for a real economy, it's a model for an imaginary one.
Promote Innovation (Score:5, Insightful)
Economy, the new excuse for broken laws? (Score:3, Funny)
I wonder if "think of the economy!" will find itself alongside the well-worn excuses "think of the children!" and "think of the terrorists!" for ramming broken laws through.
Re:About time (Score:5, Informative)
I hope they throw out all the process patents but it'll be very long if ever.
Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"
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Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"
...though it's quite within their brief to determine whether a statute is unconstitutional, of course. Marbury vs Madison.
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Re:About time (Score:5, Informative)
True, but I haven't heard anybody argue that process statutes are unconstitutional.
You have now. This is the blurb from Article I, Section 8 of the Constitution of These United States of America:
If you ask me, I don't think the Founding Fathers had "business processes" in mind when they wrote this. Understandably at the writing of the Constitution, there were no audio recordings or video recordings or computer software. But business processes did exist, and if the intention was to count their creators among "authors and inventors," I should think that they would have done so, don't you?
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Well, you could argue (not that I am) that one invents a useful art in the form of a business process, and could patent their discovery. I'm not saying that that's necessarily right or good, but I could see a solid case made on those grounds.
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Doesn't "discovery" require that the subject of the discovery exist already? So, how does one discover something new? For example, when the "New World" was discovered, it's existence had been known for many years by the population who lived there, just not known by
Re:About time (Score:5, Interesting)
If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.
On the other hand, if I am the first to "discover" a naturally-occurring mineral, I can't get a patent on it because products of nature are not patentable (yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature).
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Isn't that an invention, not a discovery? From Webster:
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If the variety of rubber in question already exists and can be manufactured by some other means, but the patent claimant has devised a different method of synthesizing that rubber, then I'd classify that as a discovery, not an invention.
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In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented.
Absolutely true.
a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.
That's what the Supreme Court has agreed to decide.
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The court has specifically recognized cases where somebody made a new process to manufacture something that was already manufacturable by an older process. For example, Aspirin was recognized as a pre-existing synthetic under U. S. law, but the court ruled that the newer process for making it was novel, because it produced a medically pure compound at a cost that made it of widespread utility, while the older process produced a compound that required costly steps to eliminate contaminants. The court recogni
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>>(yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature)
therefore they should be only patentable in the isolated state - patenting a gene in order to use it as a part of a genome is simply wrong, because it did exist in such a genome before. It's like I patented silica that appears in naturally-occurring minerals.
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Minerals also do not occur in isolated states in nature. Look at gold as an example. You have to crush a lot of rock to get an ounce or two of gold as a rule.
Re:About time (Score:5, Informative)
Process, as used in 35USC referred to manufacturing processes not thought processes.
TFA says Bilski was rejected by the U.S. Patent & Trademark Office on the basis that it simply involved a mental process.
Even if it has been a patent on a proceedure for sorting office papers into filing cabinets that did not require specialized equipment, it would STILL not rise to the level of a patentable process.
Processing raw corn into imitation leather shoe laces via a series of physical and chemical manipulations would be a patentable process.
See the difference?
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Process, as used in 35USC referred to manufacturing processes not thought processes.
Well, that's the whole question the Court has to decide. The CAFC says the process has to be tied to a particular machine or it has to transform matter. The Supreme Court will decide if they're right.
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Process, as used in 35USC referred to manufacturing processes not thought processes.
Citation please.
And the Federal Circuit also ruled the Bilski patent to be unpatentable but explicity said that software patents should still be patentable. SCOTUS will likely affirm. The main question is whether the Court will also affirm the "machine or transformation" test for process patents that the Federal Circuit used, which, by the way, came from a Supreme Court case.
For your convenience:
The Supreme Court, however, has enunciated a definitive test to determine whether a process claim is tailored narrowly enough to encompass only a particular application [**24] of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under  101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. See Benson, 409 U.S. at 70 ("Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines."); Diehr, 450 U.S. at 192 (holding that use of mathematical formula in process "transforming or reducing an article to a different state or thing" constitutes patent-eligible subject matter); see also Flook, 437 U.S. at 589 n.9 ("An argument can be made [that the Supreme] Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a 'different state or thing'"); Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm'r Pat. 242 (1876) ("A process is . . . an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing."). 7 A claimed process involving a fundamental principle that uses a particular machine or [**25] apparatus would not pre-empt uses of the principle that do not also use the specified machine or apparatus in the manner claimed. And a claimed process that transforms a particular article to a specified different state or thing by applying a fundamental principle would not pre-empt the use of the principle to transform any other article, to transform the same article but in a manner not covered by the claim, or to do anything other than transform the specified article.
In re Bilski, 545 F.3d 943, 954 (2008)
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Thanks for doing that legwork. Your cut and past proves my statement was correct.
Software patents may (arguably) be patentable, it is not yet settled. But if software are ultimately found to be so it will be because they require a device (computer) and are not a patent of a pure thought process as is business methods.
Re:About time (Score:4, Interesting)
One part of this I always choke on is the "tied to a particular machine or apparatus" test. The software patents I have been involved with throw stupid, irrelevant descriptions of computers, CPUs, and RAM at the patents to make it look like the software is tied to a machine. But they are about software running on general purpose hardware or operating systems, and not special, purpose-built machines designed to run the process under question. The math could be done by a human -- perhaps slowly, and not as accurately, but it could still be done. A PC is a general purpose machine that can do many things, not just the one thing listed in the patent.
The other test is if it "transforms a particular article into a different state or thing." A number is not an article, so computing a new number (changing it into a different state) doesn't count, and I think that was one of the reasons Bilski was rejected. The Bilski decision cites Diamond v. Diehr, Flook, and Gottschalk v. Benson saying "Specifically, the Court has held that a claim is not a patent-eligible "process" if it claims "laws of nature, natural phenomena, [or] abstract ideas." Bilski, encryption, and just about all software patents are attempts to protect abstract ideas.
The way Diehr is written is that the algorithm is protected only as a part of all the claims taken together: they could patent using the Arrhenius equation as a step of curing rubber only in conjunction with all of the other steps. But Diehr qualifies in that it transforms a particular article into another state (raw rubber into cured rubber.) Bilski is trying to transform risky investments into less-risky investments, and that was rejected by the court because "risk" didn't qualify as a tangible article. Are blinking pixels on a screen a more "tangible article"? Can you really claim that blinking them one way is patentable if there are a trillion other ways of blinking them to achieve the same results?
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One part of this I always choke on is the "tied to a particular machine or apparatus" test. The software patents I have been involved with throw stupid, irrelevant descriptions of computers, CPUs, and RAM at the patents to make it look like the software is tied to a machine. But they are about software running on general purpose hardware or operating systems, and not special, purpose-built machines designed to run the process under question. The math could be done by a human -- perhaps slowly, and not as accurately, but it could still be done. A PC is a general purpose machine that can do many things, not just the one thing listed in the patent.
Even if you take the most special, purpose-built machine designed to run a piece of software, the math could still be done by a human. The USPTO's position is that "process running on a general purpose machine" is not patentable, but "process running on a specially configured machine" is patentable... but they haven't figured out what the difference is. If you install OSX on a machine, it can't run .EXEs. Is it no longer general purpose? Likewise, if you install Windows, you can't run .APP files.
More impo
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I guess that would depend on the meaning of process in context. I mean if you take the general definition of process:
1. a systematic series of actions directed to some end: to devise a process for homogenizing milk.
2. a continuous action, operation, or series of changes taking place in a definite manner: the process of decay.
(+ a few more)
If that's the definition you could patent basicly anything, you don't even have to do it to patent it. I can patent doing a 1080 degree spin triple summersault and if any olympic diver manages one they own me royalties. Or for violating my pickup line patent when trying to score with a girl. A general "process" patent is madness.
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links?
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Google is your friend [google.com].
Sotomayor worked as an intellectual property litigator prior to becoming a judge. However, her record on IP is actually pretty moderate and mixed. She's ruled in favor of copyright holders in a few cases, yet has limited the ability of big corporations to squash cybersquatters. Generally, her opinions have tended to be pretty narrow and focused on the case at hand. No telling where she'll go now that she has the power to decide broader law without being reversed.
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From what I've read around the net the copyright attorneys for the corporations love her.
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Sounds reliable to me!
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I challenge you to prove that Sotomayor favors F5 Networks customers.
(Hey come on, news for nerds, someone had to bring it back...)
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New DNA sequences are only patentable when they are not found in nature. If they are human-contrived, then I don't see the issue (unless you're one of the fringe types who think we can do without patents altogether and still magically have modern medicine).
Whether a field constitutes patentable subject matter in the first place is a different issue (35 USC 101) than whether a particular patent clam is obvious in light of what has gone before (35 USC 103). So if it would be obvious to create a certain DNA