Well, since the Supreme Court is making us all wait for its verdict on Bilski, I thought I would explore (but far from resolve) a notion that has always fascinated and puzzled me – the concept of abstract ideas represented by real data. In order to get oriented in reality for this discussion, and avoid being completely lost in metaphysical analysis, let me posit two different types of inventions involving data – one where the data represents a real entity, and one where the data represents an abstract entity.
The first invention is a method of processing an x-ray image by obtaining an x-ray image, converting the image to a machine usable digital representation, and then processing the digital representation to remove noise in the image. This is generally the subject matter of the invention found patentable on appeal in In re Abele and Marshall (CCPA) 1982, 684 F.2d 902, 214 USPQ 682. In this first posited example, one can argue the following are true:
1) the x-ray is real (after all you can kill people with them);
2) the machine usable digital data therefore represents a real entity;
3) the machine usable data takes the form of real signals or physical quantities in that it can be stored (as a charge, magnetic orientation, physical material, etc..), moved, processed and even detected with a scientific instrument.
4) the “data,” as disembodied from its physical representation, has an abstract character, in that it only represents a real entity and only has meaning when a human mind correlates the data to the physical entity it represents.
Now, let’s posit another example. In this example the invention is a process for storing and searching machine usable data representing pure ideas, like the idea of “justice.” In this example, one can argue the following are true:
1) the ideas are not physically real – they are abstract;
2) the machine usable digital data represents an abstract entity – i.e., the notion of “justice”;
3) the machine usable data takes the form of real signals or physical quantities in that it can be stored, moved, processed and even detected with a scientific instrument;
4) the “data,” as disembodied from its physical representation, has an abstract character as well, in that it only represents the abstract entity and only has meaning when a human mind correlates the data to the abstract entity it represents.
If we agree on the above observations, then the following is also true:
1) machine usable digital data representing either real or abstract entities is real and not abstract. This data simply has to be real in order to be manipulated by a computing system.
2) real data can represent either real or abstract entities.
3) real data can be created, stored, moved and processed by a computer.
4) an invention that processes real data is real and not abstract.
5) an invention that processes real data is not performing “mental steps” as the human brain cannot store or process real data.
Another level of this same inquiry is whether a limitation that specifies the type of type of data is entitled to be recognized for the purpose of distinguishing a claim from the prior art. As established by In re Abele, if the data represents a real entity (or at least is explicitly obtained from measuring or sensing a real entity) then the limitation is given weight as if the real data was a proxy for a corresponding real (physical) entity. On the other hand, if the machine usable data represents an abstract entity, and the data is considered a proxy for the abstract entity, then this element of the claim could be considered abstract and therefore not entitled to be recognized as part of the claimed combination for the purpose of distinguishing the claim. Of course we know that most of the time these limitations are given credit, as thousands or perhaps even tens of thousands of patents now in force claim inventions with these types of limitations.
So, what are some of the types of abstract entities represented by real data? Here are a few:
- language — language has meaning only in the minds of man, and not according to any law of nature
- currency systems — a currency system is an abstraction straight out of the mind of man, rooted in a common agreement to keep financial score using the same medium of exchange
- man-made laws – laws that exist only by decree of politicians or legislative bodies do not exist in nature
- contract rights – rights that represent an agreement between parties are also abstract in the sense they do not exist in nature
Let me close this posting with the following question, and possibly the question that the Supreme Court struggled with in Bilski: If I represent these abstractions with real data, are these abstractions now real for the purpose of patent protection? I will do my best to provide some insight to this question in one of my upcoming postings. No doubt the Supreme Court will soon give us some of their insight on this question as well.
