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June 26, 2009

Definitely Not

Bilski's claims are neither useful nor definite, and hence non-patentable under §101 and §112 ¶2. The Supreme Court should rightfully ignore flawed CAFC case law, looking to its own precedents, most notably Diamond v. Diehr (for §101) and Markman v. Westview Instruments (§112 ¶2). Here's how SCOTUS should shoot down Bilski and claims of its ilk - recognize the intertwining of  §101 and §112 ¶2, that an ill-defined process is a strong indicator of indefinite usefulness, and hence unpatentable subject matter.


35 U.S.C. § 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

In a nutshell, the Supreme Court has followed statute in defining the boundaries of §101 eligible processes: 1) useful and 2) not abstract. From Diamond v. Diehr:

Excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas. See Parker v. Flook, 437 U.S. 584 (1978); Gottschalk v. Benson, supra, at 67; Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948). "An idea of itself is not patentable," Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507 (1874). "A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right." Le Roy v. Tatham, 14 How. 156, 175 (1853).

Bilski claim 1:

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer; (b) identifying market participants for said commodity having a counter-risk position to said consumers; and (c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

Bilski's process claims three steps: 1) initiate transactions; 2) identify market participants; and 3) initiate transactions. Useful? Where is there a stated useful result? What about the "such that" clause? It balances risk. Maybe useful. Maybe abstract.

§112 ¶2

Prior to the Patent Act of 1952, the dual prongs of definiteness and enablement were in the same sentence. That incurred sometime confusion, though clarity shone in Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 (1923), where the Supreme Court related definiteness to usefulness.

Indefiniteness is objectionable, because the patent does not disclose to the public how the discovery, if there is one, can be made useful, and how its infringement may be avoided.

Since 1952...

35 U.S.C. 112 Specification.

¶2 The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

In Markman v. Westview Instruments, 517 U.S. 370, 38 USPQ2d 1461 (1996), the Supreme Court laid the table for claim construction as the centerpiece of patent litigation. On definiteness:

It has long been understood  that a patent must describe the exact scope of an invention and its manufacture to "secure to [the patentee] all to which he is entitled, [and] to apprise the public of what is still open to them." McClain v. Ortmayer, 141 U.S. 419, 424 (1891)...

Whereupon SCOTUS reiterated §112 ¶1&2. The point of definiteness in a patent claim is to set boundaries.

Back to Bilski, balancing risk. The claim goes to managing "consumption risk" for which Bilski gave an example, not a definition: "e.g., the need to use more or less energy than planned due to the weather." What constitutes the cost of consumption risk? What constitutes balance? The scope is unclear. Definitely not definite. Hence, not §112 ¶2 compliant. That practically proves that the claim goes an "abstract idea."

The Supreme Court found the CAFC too rigid with its TSM (teaching-suggestion-motivation) test for obviousness, but then went overboard in grabbing a non-objective yardstick. Many fear that the Supreme Court will become even more rigid than the CAFC in Bilski, curtailing or even adding more prongs to the CAFC's two-prong process patentability test (1. machine dependence; or 2. transformation). But, to get it right, all the Supreme Court has to do in Bilski is reaffirm its own precedents, and tighten the loop - that a process claim failing "exact scope" demonstrates lack of patentability, either in not being clearly useful, or in claiming an abstraction.

Posted by Patent Hawk at June 26, 2009 12:06 AM | § 101


I've got a bad feeling about things to come...
The sad thing about SCOTUS and CAFC is that by punishing holders of the crappy business method patents, be it Bilski or MercXchange's, they f*** the rest of us, true inventors - engineers and scientists, developing foundations of future technologies
A classical example of throwing out baby with a bath water
A little more effort from this SCOTUS on their upcoming Bilski decision and you can say goodbuy to patents and hello to trade secrets...
back to Middle Ages
Full circle

Posted by: angry dude at June 26, 2009 4:45 AM

I've always thought that 112 is the way to go, but it's so incredibly subjective and, post-grant, courts don't invalidate under section 112 (in part because explaining the indefiniteness to a judge/jury is complicated).

We are also dealing with the problem of patents that were granted on crap that should be 112 (and probably 101) during the 90s and early 2000s.

Posted by: mmm at June 26, 2009 5:48 AM

Angry Dude,

What other than your own self-aggrandizing statement makes you a "true" inventor while pigeon holing Bilski et al as "phony" innovators of "crap" business ideas? Don't you think it takes work and ingenuity to devise a system that smooths the trading of energy commodities in view of weather predictions? Doesn't "(c) initiating a series of transactions between said commodity provider and said market participants ..." change the state of the players (each being a composition of matter) from one state (not being actively engaged in the transaction) to a different state (engaged in the transaction)?

Doesn't "(b) identifying market participants for said commodity ..." inherently call for use of a particular machine because for all practical purposes (see logic of Benson v. Gotchalk) there is no other way to do it except with use of a computer (which is a particular machine because it is not a lever, a gear, a pulley, etc.)?

I hear a lot of flaming and name calling going on in these blogs, but very little in the way of rational analysis. Is not a human being a "composition of matter". Does not the state of that composition have to change if it is initiated into a transaction it had not been engaged in beforehand? If you prick it, does it not bleed? If you push it, does it not change state?

Monkeys in a cage fling "crap". I was hoping for better out of this group. But why am I not surprised?

Posted by: step back at June 26, 2009 8:03 AM

Hawk, that would be a great thing to have happen. That is possibly the least objective standard I've seen proposed yet.

But, I'm just going to tell you that you'd make a wonderful examiner, and you'd be overturned going into appeal trying to craft a rejection like you just did above.

Posted by: 6 at June 26, 2009 8:38 AM

Well, being a dude with PhD in physics and 2 MS degrees (one in EE) I've always had a certain amount of disrespect for those commodity trading dudes or internet commerce types etc.
I just don't see how it promotes the progress...

Commerce and your bottom line - yes
Progress - probably no (unless there is some very clever algorithm invented which deserves to be included in standard textbooks)

Doesn't EPO have a technical contribution requirement ?

Posted by: angry dude at June 26, 2009 12:25 PM

"Here's how SCOTUS should shoot down Bilski and claims of its ilk - recognize the intertwining of §101 and §112 ¶2"

But isn't it current jurisprudence that §101 is a threshold issue and that §102, §103 and §112 strictly follow the threshold resolution?

Posted by: breadcrumbs at June 26, 2009 12:34 PM

To Dude with Physics PhD and Much Anger,

You need to finish the quote out of the Constitution dude. It says "to promote progress in ... the useful arts". That begs the question of what is a useful art? Some high faluten grand unification theorem about strings and the totality of the Universe? Nah. A method that promotes the general welfare by assuring that you get heating oil delivered to your home at a decent price on a cold, cold winter's day? Yes. A grandiose unification theorem won't be very "useful" when one is freezing one's arse off on that cold, cold winter's day. On the other hand, Bilski's method might have just saved the day. So who's the "useful" one now dude?

Posted by: step back at June 26, 2009 4:16 PM

Everything's a nail to a man who only has a hammer.

Posted by: breadcrumbs at June 26, 2009 4:49 PM

"A method that promotes the general welfare by assuring that you get heating oil delivered to your home at a decent price on a cold, cold winter's day?"

Come on, dude...
As if you don't know that the final price to consumer won't be any lower Bilski or not - the difference will be simply pocketed by somebody in between
The price will be what the market can bear and not any lower - capitalism at work
Bilski promoting general welfare ?
Just give me a break...

But the guy who invented transistor [3 guys to be precise] promoted general welfare A LOT

Same with laser, GPS, cell phone, tape recorder, CD/DVD, LCD monitors etc. etc. etc.
Those are "useful arts" that required some smart PhDs in physics or EE to come up with...

Posted by: angry dude at June 26, 2009 6:06 PM

And dude (angry physics one), don't forget the low friction glass dildo. That passes through 101 as being a "useful" art (as an article of manufacture) and its method of use initiates a transaction of sorts. Doesn't it? But you're still insisting that a method of organizing how people behave (initiating transactions) so as to reduce risk and thereby grease the wheels of commerce (in commodity trading) is not a "useful" art? Give whom a break?

BTW, re your "Come on" line. That should be reserved for the glass dildo arts. ;-)

Posted by: step back at June 26, 2009 11:36 PM

I'm glad to see people still fightin the good fight on (near) frictionless glass dildos. I still wonder why that was a precedential decision.

Posted by: Jules at June 27, 2009 6:29 AM

...and everything's a hammer to a man who only has a nail.

Posted by: Steve M at June 27, 2009 8:02 PM

101 rejections are just the PTO's easy way of rejecting claims without doing good prior art searches and making solid 102/103/112 rejections.

Posted by: John Prosecutor at June 27, 2009 9:29 PM

folks just do not understand what a good patent policy should be

If SCOTUS makes glass dildos [or new commodity trading methods) unpatenable this country will survive, well, some folks will be unhappy, some will be richer, some will be poorer, but that's all to it
But if SCOTUS messes with "software patents" for example, it can have very negative consequences for long-term technologiocal progress in US
And lack of technological progress will directly lead to decreased living standards, to poverty, but more importantly to America losing military supremacy in the world
I hope SCOTUS justices understand the difference between commodity trading and e.g. computer-implemented artificial neural network for recognising and trascribing human speech and identifying the speaker, for example, or for mining huge image database in search of a particular face etc.

Patents are not just another way to make a buck, maybe it is for you, but for the country it is a way to move forward

Posted by: angry dude at June 27, 2009 9:56 PM

See Angry, that's where we disagree (politely I hope).

Patents were never intended to "cause" progress (i.e. moving forward) or to save the country from itself.

Patents were intended to create a race condition where the first across the finish line (who adequately discloses) gets the prize. They were intended to function by "promoting" (graduating, increasing in speed and amount) the progress that was already there.

If the US Congress had seen it your way, they never would have written 101 to include the word "any". Instead they would have sculpted 101 to read, Whoever invents something that Angry Dude arbitrarily and capriciously decides is worthy, may apply for a patent therefor; all the rest of you people, too bad for you.

As to the other point, SCOTUS is incapable of understanding the difference between potato chips, computer chips and pornography. What you ask of them is too much. Even we patent professionals here cannot agree on a definition of what a "software" patent is is, or what a "business" method is. What chance does SCOTUS have? They're still scratching their heads over how Benson's BCD conversion method works and how it preempts the universe.

Posted by: step back at June 28, 2009 3:32 AM

step back,

It was always my understanding that patents were meant as an incentive to publicly disclose valuable trade secrets, or in the case where trade secrets are impossible to keep (like Bell's telephone patent or Kearn's windshield wiper patents) ) to provide incentives to do R&D which otherwise would not happen at all

AS far as SCOTUS is concerned I agree 100%
What saddens me most is not even their technical cluelessness but a total disrespect for the rights of common American citizens
Just read their (non-patent related) Kelo decision - it's a precursor to EBay decision
They just don't give a f*** about a little Joe Shmoe - a homeowner or garage inventor
No respect for property rights of the little guys
SCOTUS is owned by large (multinational) corporations, just like the rest of our government
And this is what kills this country, slowly but surely

Posted by: angry dude at June 28, 2009 6:22 AM

Step Back,

You lost me at "Patents were never intended to "cause" progress..."

Posted by: breadcrumbs at June 28, 2009 7:25 AM

step and angry, I'm pretty sure that patents were intended to do what both of you say...

"SCOTUS is owned by large (multinational) corporations, just like the rest of our government
And this is what kills this country, slowly but surely"

I have to agree with that. SCOTUS helped to create the monstrosities in the first place. I was just reading about their decisions that allowed the incorporations to have all the rights of a person, that is, to sue, and be sued, etc.

I had wondered how such a bizarre practice had come about.

We're still paying for the mistakes of our forefathers just the same as we're reaping the benefits.

Posted by: 6 at June 28, 2009 7:41 AM


Section 8.

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Posted by: step back at June 28, 2009 9:14 AM

Step Back,

What distinction do you have in mind between "cause" and "promote"?

Posted by: breadcrumbs at June 28, 2009 12:40 PM

promote: to advance in station, rank, or honor; to advance from one grade to the next higher grade2 a: to contribute to the growth or prosperity of : to further --Merriam Webster online dictionary

cause: To bring about or compel by authority or force: --American Heritage online dictionary

Posted by: step back at June 28, 2009 1:09 PM

Step Back,

Ok, I have the definitions. Is there a reason why you chose two different dictionaries for the words?

Perhaps (specifically) since Merriam Webster online dictionary for "cause" states:
1 a: a reason for an action or condition : motive
b: something that brings about an effect or a result
c: a person or thing that is the occasion of an action or state ; especially : an agent that brings something about
d: sufficient reason
2 a: a ground of legal action

In which case, "cause" in the sense of 1b seems perfectly amenable, and is absent the forceful compelling aspect of the definition you chose.

Is there really that much distinction between contributing and being an agent that brings something about?

Even if you choose the "absolute" sense based strictly on compelling by authority or force, "cause" can still be linked to patents in at least patents are legal rights that are compelled by authority or force. Without such authority or force, patents could be ignored and would be worthless.

Is it perhaps the shade of compelling as a more forceful action than mere contributing that you mean by "Patents were never intended to "cause" progress..." ?

Perhaps it is only a subtle distinction that I am missing, but it doesn't seem to be a distinction with a difference. Either way, patents are around because the founding fathers thought that they would provide impetus for advancement. Even granting a most extreme definition, the shade from "compelling" to "contributing to" seems a minor degree in the overall scope of why patents are encouraged.

The debate about such impetus in the absence of natural forces is a related topic, but let's hold off on that for now.

Posted by: breadcrumbs at June 28, 2009 2:49 PM

Correct me if I'm wrong, but I firmly believe that patents *cause* progress in many fields.

Take new drugs, for example: who in his right mind would go through the hell of discovering a new drug (a game of chance) and gettiong it all the way through FDA approval hell just to be ripped of by a generics maker - it is way too easy to analyze the substance and resynthesize it

Or take something like phone invention (xerox, windshield wiper etc. etc.) : do you honestly believe that Bell would tinker with those wires and magnets for years if he knew he could not have any legal rights ?

Very certanly patents CAUSE progress by providing incentive to do R&D in the first place

Posted by: angry dude at June 29, 2009 7:13 AM


It seems you want to keep this discussion (not really a debate) going.

I am not going to dispute you on the point that for some fields of endeavor (i.e. high risk development of experimental pharmaceuticals) and for some innovators (Davids going up against Goliaths), a strong patent system is absolutely vital. We don't have to argue in the abstract because there are examples around the globe of governments that do and don't sustain a strong and real patent system and the chicken versus egg consequences of that political choice.

The debate with Crumbs was about the difference in nuance between the word "promote" and the word "cause" where it is the former that appears in the US Constitution. To my mind, promote means taking it to the next higher level. If the starting level is zero, well then of course "promote" means taking innovation to a next level, above zero. On the other hand, in areas such as IT, innovation seems to take place no matter what and the question is whether patents take R&D one notch up to a higher level. I would say patents do "promote" progress even in IT because without patents no small inventor would have incentive to go up against Goliaths like MS. Why bother developing anything if Goliath is simply going to snatch it away from you at the end of the day?

(As for you example of Alexander G. Bell, there are some, i.e. author Seth Shulman, who contend that the patent system helped Bell in a different way, namely, by helping him to steal the invention from Elisha (sp?) Gray. But that is a separate debate to be had by historians.)

The real question here is what comes first, thoughts about patents or thoughts about inventing? I would say inventors focus their mind on inventing and not on the follow on patent application. First you invent and then, only after having invented, might you toy with the idea of getting a patent. The patent system does not "cause" the invention to come into being. But it sure does help by giving inventors the assurance that, if they are first to invent and can prove it, they will be given "exclusive right" to their respective discovery --or at least that's what it says in the US Constitution. It seems that the courts and the USPTO do not read that document too often; or if they do, they interpret "promote" to mean put your foot on the brakes.

Posted by: step back at June 29, 2009 8:34 AM

Step Back,

Thank you for the clarification, although I still need help understanding your position.

And I can see why angry dude disagrees with you.

It really does become a semantics game, especially in the shades of grey that exist in the real world. As it appears to be so shaded, I would lean to the point that your distinction is one that does not make a difference - your example of David and Goliath is an excellent example. If you accept that a strong patent system is absolutely vital, are you making a position that the patent system should not be universally applied, that some fields of endeavors merit more protection than others? I am having difficulty seeing where you are going with your points...

Posted by: breadcrumbs at June 29, 2009 8:54 AM

In case of IT, patents also promote progress by encouraging inventors to publicly disclose their ideas as opposed to keeping them as trade secrets in compiled code (I mean patents on novel and useful things like better compression techniques, digital signal processign algorithms, algorithms for speech or image recognition etc.)

Public at large benefits from public disclosure of those things so they do not get lost

Posted by: angry dude at June 29, 2009 9:08 AM


I was having exactly the same thoughts as the words, "put your foot on the brakes" stumbled out from fingers onto the keyboard.

Interesting question. Yes. Personally, I do not have an agenda and a goal as to where those ideas should move us next. Will Congress determine that some fields of endeavor need more of a "foot on the brakes" than others? I don't know. Will Congress be able to clearly define a bright line test that demarks one field of endeavor as being separate from that other field "as such"? I doubt it. Look how badly the Europeans (with MaxDrei excepted of course) have fumbled with their "as such" test. We are incapable of defining "software" by itself let alone what the software "as such" phraseology means. The latter merely adds another layer of confusion on top of the first.

But let's get back to that word, "promote". If you fully understand "promote", then you understand that it implies an exponential function for increase of innovation in a given field at ever increasing rates of growth. No matter what level we are at right now, the Constitutional mandate calls for graduating (promoting) to the next level.

One might argue that in the field of IT, we have been too successful; successful beyond our wildest dreams. And then, just like the Sorcerer's Apprentice, when the outcome of the magic starts to get ahead of us, we don't know how to slow it down and we get into a panic mode. I think the USPTO is in panic mode right now with regard to computer-related inventions just as the Sorcerer's Apprentice was when the wash buckets kept multiplying and multiplying. The panic is so great at the USPTO (and in the courts) that they can't get a clear head around the problem. How do we stop this deluge of innovation and patent filings in the IT arts? None of them pause to ask, should we stop it and why? It's all emotions running on full testosterone overload and no stepping back to cool headed rational thought.

What are your thoughts on the issue of the Sorcerer's Apprentice problem?

Posted by: step back at June 29, 2009 10:20 AM

Step Back,

I enjoy your questions. Not seeing where you are going with them makes me pause as I am not always certain I understand what your intention is, or what point you are making. I always find it easier to discuss a topic if I understand where the other person is coming from (and where they want to go).

You ask:
“One might argue that in the field of IT, we have been too successful;”
“How do we stop this deluge of innovation and patent filings in the IT arts?”

I think the answers to these questions may well depend on the acceptance of an unspoken premise that the questions themselves are valid. I’d like to add a few questions to that unspoken premise:
- Can anyone be too successful?
- Why is a deluge of innovation and patent filings a bad thing? Or put another way,
- Why stop something when it is working as intended?
- Of course, this has its own premise that the intent of the patent system is to “promote” or “cause” innovation (use either as you may deem), and that very innovation will naturally and logically feed itself with more patent filings.

I would hold that there is NO legal standing to the Office wanting to (or even needing to) put the foot on the brakes. Such a concept goes against the very core foundation of what the purpose of the Office is supposed to be, imho. Any one person’s views on “too fast” and “too much innovation” are likely to be in opposition to another person’s views on the same concepts. It is not a call the Office should be concerned with. The better concern would be – how does the Office respond to such a high degree of desired innovation? Natural market forces will dictate which areas of innovation are pursued. The Office at the direction of the President or Congress may make some areas more amenable – such as AIDS research, energy conservation or superconductivity, but generally speaking such intercessions will be the exceptions rather than the norm. To dabble too much only invites politics and inefficiencies (like we don’t have politics involved in the various patent reform movements…). I think that to segment Patent Law per field of endeavor would likewise bring too much politics into the situation and then you would have your own Sorcerer’s Apprentice issue with the multiplying segmentations.

To address your point, I am not sure that the Sorcerer’s Apprentice problem is truly an apt analogy. It has been awhile since I watched the Disney version - I have refreshed myself with the Wikipedia version, so I offer my apologies in advance for any errors.

Wikipedia calls this the Sorcerer’s Apprentice Syndrome (SAS). I can see where you might think the relation between innovation and patenting can be similar to the floodgates being opened and the reinforcing cycle of patent to innovation to more patents to more innovation would be like SAS, but there is a difference in that SAS is inherently involved in a system’s multiple reaction to a single event.

As Wikipedia points out, “The fix to SAS was quite simple: the TFTP specification was modified to indicate that only the first instance of a received acknowledgment would cause the next data block to be sent; further copies of the acknowledgment for a particular data block would be ignored, thus breaking the retransmission loop. In the new version of the protocol, a block would only be retransmitted on timeout.”

The analogous controls ALREADY exist in the patent system – only the first instance of a particular innovation is allowed.

Since the system already has the proper controls in place, the issue is a different problem. What you have is a management problem, not a topic problem. - “My responses are limited. You must ask the right questions”

Ideally, we would see the problem experienced with software actually repeated in other fields of endeavors. The Office should never “NOT” promote innovation, let alone try to hamper innovation or put it in reverse.

Posted by: breadcrumbs at June 29, 2009 12:47 PM


Interesting discussion.

No. I don't know where we are going with this.
But why should that be frightening?
Does any inventor/explorer know exactly where he/she is going when first embarking on a venture?

You ask:
- Can anyone be too successful?

Well, yes. There is an old adage about being careful regarding what one asks for because they just might get it.

Let's say you are a fisherman and your goal is to catch a bigger fish. Then one day you are out on the high seas and you discover that Richard Dreyfus is one of your passengers. He turns to you and he says, "You're going to need a bigger boat" -catch line from the movie "Jaws".

Maybe in the early days some Patent Office commissioner wished for more patent filings. Maybe some underling warned, "You're going to need a bigger boat" and the commissioner just laughed the warning aside.

I think that is where the USPTO finds itself today. The number of filings has been growing exponentially, the number of examiners has been increasing linearly if at all, and backlog keeps growing. So they have to come up with some "innovative" way of stemming the rising tide. Perhaps they see Bilski as their saving ploy. Just reject everything under 101 and then you don't have to do expensive searches and analysis under 102 and 103 and you don't have to keep hiring and training more examiners.

If the Bilski ploy is "successful" for method claims, what comes next? A new 101 test as to machines and compositions of matter? Should one say that a "machine" is limited to what the Founding Fathers considered to be a machine and henceforth any contraptions based on "abstract" physics (i.e. the changed electromagnetic state of a programmed computer) should be banned under 101?

Posted by: step back at June 30, 2009 1:34 AM

Step Back,

I agree - the interchange is interesting, but I disagree as to "But why should that be frightening? - Fright, has nothing to do with my questions - it is the desire to understand that prompts them.

"Maybe in the early days some Patent Office commissioner wished for more patent filings."

That reminds me of a famous attribution: Everything that can be invented has been invented. - Charles H. Duell, Commissioner, U.S. patent office, 1899.

...or do you mean even earlier? Didn't the founding fathers put the patent system into place to encourage innovation, which logically means to encourage filings? You yourself allude to the exponential nature of the founding fathers word "promote". It is not a new philosophy or thought pattern that we have too many filings and too much innovation. Like I posted earlier, one person's "too much" is another's "not enough". But the question - is it too much? is not the right question.

"So they have to come up with some "innovative" way of stemming the rising tide."
- per my last post, we will obviously disagree. Aside from your answer to "can anyone be too successful?", you do not answer any of my other questions before you restate your position. I would also comment on your "Jaws" answer in that the problem wasn't that the crew was too successful, it was that they were not adequately prepared (adequately prepared - now there's a thought). While Jaws has limited correlation, I would also point out that Dreyfus and company were successful, even at a price - the killer shark was conquered. No more silly teens falling off of sailboats to be eaten (until the next movie).

I look at it that the proper answer will come when the right question is asked. You must ask the right question. Go down the path of trying to find ways to NOT promote innovation, and you introduce the perversions that we see.

Posted by: breadcrumbs at June 30, 2009 3:34 AM

Come back Step Back - Don't be afraid to explore further, or are you done with this thread?

Posted by: breadcrumbs at July 3, 2009 7:22 AM

I think we got into our tango above over the distinction between the words "promote" and "cause". The US Constitution of course, says "promote".

It was my contention that the Founding Fathers were not under the delusion that progress could not occur in Science and the Useful Arts without the presence of a patent system.

Heck, wasn't Ben Franklin designing bifocals and flying kites even WITHOUT there being a patent system in place? See for example the following link:

What the Founding Fathers understood was that all this inventing going around on the new continent could help "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity" per the Preamble to the US Constitution; especially if inventors uncovered (dis-closed) their innovations so that one giant could stand on the shoulders of the next and thus see farther; in which case, the rate of innovation could be "promoted".

So what more did you want to discuss?
Hey, did you see that the USPTO has finally uncovered (disclosed) the text of Bilski's patent app?

Posted by: step back at July 3, 2009 11:06 AM

First of all, 112 is no more intertwined with 101 as is 102 or 103. While related they remain separate and distinct sections or doors to patents of which each has its own key, as Judge Rich would say. In addition I have yet to read any congressional intent, actual statute, or case law that says a claim must explicitly define its terms in the claim itself. Isn't that what the specification is for? And isn't that where an inventor can act as their own lexicographer????

Same goes for explicit statements of usefulness in the claim itself, there is no requirement for that and including a statement of usefulness in the specification serves that purpose. Which brings me to my main gripe with this, if you haven’t actually read the spec how in Sam blazes can you say certain terms are not defined or ill defined to the point of indefiniteness!!

As far as being absract, Bilski argued that the process requires physical acts of communication and therefore is not an abstract idea.

What we all need to do is take a deep breath and realize that when we talk about business methods, and software for that matter what we are essentially discussing is a set of instructions, a series of acts and steps to be taken. Bilski is clearly a statutory process and if not for the arbitrary narrowing of SCOTUS Diehr case law by the CAFC , he would probably have his patent today.

Let’s hope the SCOTUS puts an end to this non sense and sets the record straight.

Posted by: Actual Inventor at July 14, 2009 10:02 AM

Software patents should be abolished altogether. Canada is one country, among a growing number of them, that does not allow for patenting of software per se. Because most, if not all major software companies are American, the US government actively lobbying for proliferation of software patents. http://www.pinskylaw.ca

Posted by: Neal at August 26, 2010 9:13 AM