Comments for Software Patent Law | Patents4Software.com

Comment on Should your next “software” application include at least one embodiment that is a machine-specific “electronic process”? by Karen G. Hazzah

Karen G. Hazzah — Wed, 14 Sep 2011 23:04:16 +0000

>This begs the question, what constitutes “structure” in a software >environment.

I believe the Fed Cir answered your question in WMS Gaming:

“In a means-plus-function claim in which the disclosed structure is a computer, or microprocessor, programmed to carry out an algorithm, the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm.”

That is, the Fed Cir held that in a software context, “structure” means “algorithm.”

Perhaps your real question is a slightly different one: how *much* structure (read: algorithm) is required to comply with 112P6 when the claimed function is implemented in software. Put another way, what level of detail is required in describing the algorithm?

I don’t think that the Fed Cir has given us an answer to that question yet — which is surprising, since WMS Gaming is now 12 years old.

Comment on Here’s a Question for Opponents of Software Patents by Bastian Best

Bastian Best — Thu, 17 Mar 2011 15:34:51 +0000

Good point, I’m really curious about the answers!

Comment on BPAI Finds Method for Interpreting an MRI Image Statutory Even Though Not Tied to a Machine Implementation by Trent Ostler

Trent Ostler — Mon, 21 Feb 2011 18:59:33 +0000

Interesting observation. It makes me think back to Chief Justice Roberts at the oral argument of Bilski.
CHIEF JUSTICE ROBERTS: Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say the method isn’t patentable because it doesn’t involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That’s like saying if you use a typewriter to type out the process, then it is patentable. That takes away everything that you spent 53 pages establishing.

Comment on Bilski vs. Kappos Death Star Vaporizes Ultramercial Patent by Sal Ignab

Sal Ignab — Mon, 30 Aug 2010 17:02:17 +0000

I would have thought that this patent would have been challenged on the basis of obviousness, not start a debate about whether the Internet is a machine.

It seems to me that if somebody has a really great idea, and it allows others to make money off of it, then the inventors ought to be compensated.

Bilski may be a Death Star, but in this case, Hulu et al clearly profited from Ultramercial’s idea – and blowing up this patent was exactly the kind of henious act that gets the Jedi on your ass.

Comment on Bilski vs. Kappos Death Star Vaporizes Ultramercial Patent by step back

step back — Thu, 26 Aug 2010 20:34:29 +0000

Steve,

Thanks for the clarifying notes.

Of course, you cannot possibly be reading this comment because my keyboard is an “abstraction”, its electrical coupling to that there ‘Internets’ is an “abstraction”, and the electrons that are induced into motion so as to cause my keystrokes to appear symbolically on your computer screen, those too are “abstractions”.

Thank goodness we live in the 12th Century.
(Anyone who thinks it’s the 21st Century is confused. Their digits must have been alchemically transposed.)

Comment on Highlights of the New USPTO Section 101 Guidance by Mark Nowotarski

Mark Nowotarski — Fri, 30 Jul 2010 13:18:51 +0000

I am concerned that examiners are being given guidance phrased as “factors that weigh in favor”. In order to be time efficient, examiners and applicants need clear cut tests. Otherwise office actions – responses will degenerate to “is to”, “is not”, “is to”, “is not”…..

Comment on In re Bilski — “So You’re Telling Me There is a Chance…” by Warren Woessner

Warren Woessner — Tue, 29 Jun 2010 21:51:17 +0000

Excellent post. In ducking any attempt to define “business method”, the Court left us without a workable definition of “abstract idea.” Judge Sweet in the Mryiad decision found that a claim to screening a patient’s DNA for a mutation that might indicate cancer recited merely “abstract mental processes”(“analyzing and comparing”). I agree that the Court’s decision left the door open for application of the M or T test and the abstract idea test to a lot wider range of methods/processes than business methods.

Comment on In re Bilski: Supreme Court Clips Wings of Business Method Patents, but Still Lets Them Fly by Matt Prater

Matt Prater — Mon, 28 Jun 2010 17:19:53 +0000

While the opinion does not endorse State Street, it does not say, “we maintain the reversal of State Street” or something to that effect. It is possible the body of law that grew out of State Street could still be alive, so long as it is in agreement with Benson, Flook, and Diehr.

Comment on In re Nuijten Revisited Yet Again — If only Einstein was a Federal Circuit Judge by BusyBody

BusyBody — Fri, 25 Jun 2010 14:37:17 +0000

The position of the CAFC, and perhaps the Supreme Court (we’ll know on Monday) is analogous to that of the Catholic Church in the time of Galileo. In the face of overwhelming data, the Church refused to acknowledge that the earth revolved around the sun. It was stuck in the past, with a faith based belief that the sun revolved around the earth.

The CAFC is stuck in the past; that is in a Newtonian world where mass is represented by an apple falling from a tree. It is time for them to “get with the program.” The notion of the physical world was greatly expanded about 100 years ago by Einstein and his fellow physicists. Entire industries have been build upon principles of quantum mechanics. Instead of acknowledging this, the CAFC has chosen to compare signals to ghosts and other “paranormal” energy forces and render them unpatentable.

I predict that future generations will look back on this decision and either laugh or cry–not in a good way.

Comment on Abstract Ideas Stored as Physical Data: Real or Abstract? by slundberg

slundberg — Sun, 13 Jun 2010 17:15:40 +0000

Thanks. I fear for the worst from Bilski.