September 7, 2013
The nature of automation is labor saving: replacing labor by a machine performing a task. But in Accenture v. Guideware (CAFC 2011-1486), the CAFC decided that automation is unpatentable under § 101 if done using computer software. The war against software patents gains ground. A claim that poses "any risk of preempting an abstract idea," is unpatentable. Which means that any task requiring cognition is unpatentable. Which, because no task is mindless, means every task. Legislation from the bench continues unabated.
In dissent against Judges Lourie and Reyna, Chief Judge Rader, himself an anti-patent warrior, declared:
"[A]ny claim can be stripped down, simplified, generalized, or paraphrased to remove all of its concrete limitations, until at its core, something that could be characterized as an abstract idea is revealed. A court cannot go hunting for abstractions by ignoring the concrete, palpable, tangible limitations of the invention the patentee actually claims." Ultramercial, Inc. v. Hulu, LLC, 2010-1544, 2013 WL 3111303, at *8 (Fed. Cir. June 21, 2013). In my judgment, the court has done precisely that.
The "ineligible" subject matter in these system claims is a further testament to the perversity of a standard without rules - the result of abandoning the statute.
Posted by Patent Hawk at September 7, 2013 3:19 PM | § 101