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November 2, 2008

Bilking Bilski

35 U.S.C. § 101 cedes patentability to "any new and useful process," without further qualification. The CAFC Bilski ruling, limiting process claims to being tied to a particular apparatus or transforming something, has no basis in statute, and questionable case law heritage. As dissenting Judge Newman observed:

The breadth of Section 101 and its predecessor provisions reflects the legislative intention to accommodate not only known fields of creativity, but also the unknown future. The Court has consistently refrained from imposing unwarranted restrictions on statutory eligibility, and for computer-implemented processes the Court has explicitly rejected the direction now taken.

Posted by Patent Hawk at November 2, 2008 1:07 AM | § 101


"The breadth of Section 101 and its predecessor provisions"

If she wants to go back to its predecessor provisions the discussion is already over, and she loses horribly. That said, limiting ourselves to the present provisions, she's right, there is no explicit statutory basis, however, if we observe how 101 (and its predecessor provisions actually) have been interpreted by the SC over the last 100 yrs or so it is plain to see that the term "process" was not meant to be taken as being used in the general sense, it had rather a very specific meaning. That specific meaning is where the "tied to an article" and "transforming an article" prongs came from. And that is where it will continue to come from until the SC/congress says otherwise. End of story, you lose Newman, but maybe we'll see her on the SC someday...

Posted by: 6k at November 2, 2008 9:38 AM

Hawk, would a new and ingenious process of making notes to develop a plot for a thrilling novel be "useful"? Don't you think that "useful", in the context of the Statute, is tied to "useful arts" ie technology, and excludes the "liberal arts"? So it's not any process under the sun made by man. Is it?

Posted by: MaxDrei at November 3, 2008 12:38 AM

......or a new and ingenious process of making notes (as taught in various schools over here), to heighten one's chances of passing the tough exams to become a European Patent Attorney. A patent on that would be even more useful.

Posted by: MaxDrei at November 3, 2008 12:42 AM

Hi Max,

You can't expect to be taken seriously with such tripe.

Get a grip, man.

Posted by: Patent Hawk at November 3, 2008 12:50 AM

OK, "tripe" but, in that case, why aren't the "film script" patents that are championed by Greg Aharonian. If all "fields of creativity" are eligible, in which paper and pencil processes occur, why can't I patent mine? A short answer will suffice.

Posted by: MaxDrei at November 3, 2008 5:23 AM

Testing. Testing. THIS IS SPAM too.

Hawk, just testing to see if your comment spam filter still works. Oh wait, maybe the spam filter wasn't patentable because it couldn't transform E6K or Max's comments into something useful.

Posted by: NIPRA anonymous at November 3, 2008 5:57 AM

Under Bilski, it is doubtful that perfect spam filter software (using a novel algorithm on a general purpose processor) would be patentable under 101, especially in light of Ex Parte Langmyr.

Filtering spam can be viewed as a Turing test of sorts (i.e., is this email or posting the communication from a human)....hmmm, so I guess an AI that would pass a Turing Test isn't patentable, either.


Posted by: Anon E. Mouse at November 3, 2008 2:11 PM