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The Post-Bilski Era Gets Underway
bfwebster writes "A set of pharmaceutical process patents for 'evaluating and improving the safety of immunization schedules' (Classen v. Biogen et al.; see US Patents 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be invalid due to unpatentability. The decision was appealed to the US Court of Appeals for the Federal Circuit, but was upheld with a terse citation to In re Bilski (which decision we discussed here). Here's the entire text of the appeals decision: 'In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.' It will be interesting to see what happens when these same standards start getting applied to software-related patents."
One of the links doesn't work, gives an HTTP 404 error.
For us non-laywers and not interested enough to spend time looking up those court cases but interested enough to understand what the significance of this is, can someone please translate the summary into plain English?
Negative moral value of force outweighs the positive value of good intentions.
As a software examiner I can say that this honestly doesn't change a lot in our art unit. If the implementation could occur in someone's head then no physical transformation takes place (i.e. software steps that aren't claimed to be on a computer.)
There are only a small amount of applications this effects and it's very easy to overcome, although I unfortunately can't go into much more depth than that.
Well, back to rejecting software patent applications.
Hey, since that is a transformative act, why not patent it? Then you can prevent anyone else from trying to "punish jews."
While you're at it, why not extend the patent to *ALL* hate crimes? And WAR? Be nice if hate crimes and war were impractical because of potential patent violations.
And you could patent stupidity. We could all use an outbreak of common sense.
Software patents, sadly, play by different rules than everything else. I'd imagine that software patents would still be granted and enforced, especially since they could just tie the process to the PC and meet the court's requirements. Meh.
US businesses that currently accept chip and PIN/signature
It's a virtual invention and gets no protection. Patents after Bilski pretty much have to be tied to a particular machine or change something in meat-space.
âoeWe leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine.â
Direct citation from Bilski's case.
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
Ooops. That says "post-Bilski" not "post-Bikini".
Darn. And I was looking forward to visiting the bikini-free beach this summer. :-|
FOX NEWS.com should be BANNED from television and internet. Have the Congress take it over and give us Truespeak.
And you could patent stupidity.
I'm quite certain that'd be one case in which prior art would not go unnoticed.
I only post comments when someone on the internet is wrong.
While you're at it, why not extend the patent to *ALL* hate crimes? And WAR? Be nice if hate crimes and war were impractical because of potential patent violations.
Sad as it may be, you might be able to get away with patenting it. Assuming there aren't rules against patenting what is already illegal. I say someone patents "A Method For Hiding Illegally Obtained Moolah By Utilizing A Shell Company."
We could all use a sudden outbreak of common sense.
There. Fixed it for you.
I've just glanced briefly at the first patent listed (6,420,139), and at its first couple of claims, and to me it seems they could be summarized as "apply the scientific method to immunization schedules".
While I'm not actually opposed to all patents, even software patents, I do think there are a lot of crap patent applications being submitted (with many of them being granted), and my initial impression is certainly that this is likely to be one of them.
Your god may be dead, but mine aren't!
Properly, software, as a written work, should be covered by copyright and not patents anyway. This was true in the past, and the changes that allowed software patents to become common are precisely the cause of all the problems everybody is now trying to fix.
If the current Bilski ruling does not change this effectively, then reasonable people will continue to push until it is changed. In other words, our goal (no joke or exaggeration) is to put you out of a job.
Hey, since that is a transformative act, why not patent it?
Sorry, prior art. Look up Genghis Khan v Asia.
Equine Mammals Are Considerably Smaller
Here's the claim:
1. A method of determining whether an immunization schedule affects the incidence or severity of a chronic immune-mediated disorder in a treatment group of mammals, relative to a control group of mammals, which comprises:
immunizing mammals in the treatment group of mammals with one or more doses of one or more immunogens, according to said immunization schedule, and
comparing the incidence, prevalence, frequency or severity of said chronic immune-mediated disorder or the level of a marker of such a disorder, in the treatment group, with that in the control group.
As discussed here, it's difficult to see why immunization of animals is not transformative.
either legally or conceptually. This identical issue was settled by the courts almost 150 years ago, when the "music industry" of the time was up in arms about piracy of music for player pianos.
Industry argued that the paper rolls should be patentable, because they constituted physical items that controlled a physical machine. The courts ruled (quite properly, in my opinion) that the physical form of the music is irrelevant; it might be possible, for example, to make a machine that could read music directly off the paper it was written on. Does that make it fundamentally a "different" product or work from the original? The answer was unequivocally "NO".
The same holds for written vs. compiled software: there is no fundamental difference between the results of software that is run in realtime by an interpreter (which reads the source code directly), and the results produced by the same program when compiled. If the interpreter and compiler are constructed properly, the output is identical. Therefore there is no legal (or moral, or ethical, or logical) difference. For all practical purposes they are the SAME.
It is precisely because industry has managed, after all this time, to finally get the courts to be sympathetic to the position that software should be patentable that we are having all these troubles. During the long period when it was understood and accepted that software was a copyright issue rather than a patent issue, such problems seldom arose. Now they are everywhere. Also, software patents have a chilling effect on innovation; we have seen this time and again, even some really egregious examples. It is clear by now that software patents have very little if any societal benefit, in proportion to the harm that they cause.
It still will need to pass the hurdle of "obviousness" under KSR, which basically lays down a standard of using commonly known components in accordance with known techniques and getting the predictable result is highly likely to be "obvious" and thus fail patentability.
What I found interesting in this case is that the courts have told the patent attorneys in this case that the Bilski ruling actually means what it says, and that trying to game their way around it will result in summary execution of thier case.
The rules have fundamentally changed.
it is the courts that decide what is patentable as a "process", as the Blinski ruling so clearly demonstrates. Until recently, courts were (again properly, in my opinion) reluctant AT BEST to consider that software constituted a process, and usually rejected the idea out-of-hand. Until recently. Which was the whole of my point.
Maybe the examiner is a practitioner? :-)
There's been lots of evidence of that over the last decade.
Novelty is not part of the patentable subject matter analysis. That is a completely different issue.
Prior art, already published, and even taught in a class a few decades ago by one Tom J. Billman (now a guest of the Federal Bureau of Prisons).
Since when did prior art count for something again?
If you can write software that does the same thing as mine (as you say, without copying the "look and feel" TOO much), and even if you do it better... THAT IS WHAT A FREE MARKET IS ALL ABOUT. As long as you do your own work and do not steal mine, if the end result is similar... then you are my competitor. That is the way it works!
As an honest businessperson (i.e., not one to try to use dishonest or coercive methods to take over the market), I welcome the challenge. As long as you are also an honest businessperson, and also do not break the free market rules.
This is called Free Market Capitalism. And it works. Despite what people have been saying about it lately, it has NOT been capitalism, or free markets, that have failed. It has been government and large-corporation distortion of the markets that has caused these failures. Funny... but those aren't even free-market concepts. But they try to blame capitalism anyway, as a means to get you to lose faith in same.
Not only would the software need to run on only one make and model of computer, it would have to be included with every instance of that computer.
So in other words, Nintendo could make one of its games eligible for a patent by including it as a pack-in with one of its consoles. Is this correct?
Outlaw nudity for anyone over 150 (years or pounds).
That might be sex discrimination. I would imagine that as a group, men over 150 pounds tend to be healthier than women over 150 pounds, if only because men are taller. Even Olympic swimmer Michael Phelps weighs about 200 pounds, largely because of his muscle.
Did it occur to you that terrorists don't care if they get sued for IP infringement?
Well, that's how I first read it! Say it 'int so...
RAQUEL WELCH!
"Speaking the Truth in times of universal deceit is a revolutionary act." -- George Orwell
Well knock me down and mod me flamebait! Oh, never mnd, somebody else already took care of that. If novelty is not a requirement for patentability, I'm moving my flag to the patents should be outlawed camp. Seems like a constitutional amendment would do it.
Somebody should clue the USPTO about that though, so that they can take down or appropriately modify this page. Maybe just a footnote that says "the requirement for novelty shall not be used to keep well-connected parasites from getting a free ride for the rest of their lives." Yeah, that should do it.
Can a post be modded lower than -1 Flamebait or -1 Troll? Anxiously awaiting the answer. Burn Karma, Burn!
If you want your life to be different, live it differently.
Novelty IS a requirement for patentability. Determining if something is patentable subject matter (what I said in my reply) is what Bilski concerned and it is part of the patentability analysis. Novelty is the next step. Look at the statute. 35 USC 101 is patentable subject matter, 35 USC 102 deals with novelty.
But it still doesn't make any practical difference. Legally, it's still all the same. Technically, what is being patented is the "process", not the software... and that is what the Bilski decision was all about.
.GIF files decided to enforce the patent, people stopped using the .GIF format in droves. Some still used it, and still do... but it's popularity took a nosedive. Today, most people are probably more likely to use the .PNG format, even though the patent on the .GIF algorithm has lapsed.
And I would like to explain one reason for my disagreement. First off, I can agree that algorithms can be considered a "process" or "methodology". But the question here is whether they are patentable processes or methodologies. And there are a number of rules for patentability that most algorithms do not meet (despite having been awarded patents by the PTO in the past... part of the problem has been overwork or incompetence on the part of patent examiners).
One of these standards is novelty. A patentable invention or process cannot (legally) be merely an assemblage of other items or processes already in common use. For example, a bottle opener welded to a pry bar is not eligible for a utility patent as a new kind of carpenter's tool. It is merely the combination of two already existing, common tools.
Very few algorithms pass this test. Most are merely assemblies of other common algorithms. Once in a great while, an algorithm is created that does something unusual or unique... but even then, it is debatable how much that algorithm is an entity unto itself, versus merely an assemblage of simpler code that already existed. If the latter (and it almost always is), it is not patentable.
This a primary reason why books are not patentable. A book might be unique and even "inventive". A book might be written that creates an unusual or unique effect in its readers. But... a book is only a collection of words. The whole of the book might be a novel combination of those words (no pun intended), but it is still just a collection of words. As such, it is not patentable.
In exactly the same manner, a computer program is merely an assemblage of smaller, common constructs: (if, then, else, while, when, until, etc...) As such, it is arguably not patentable, even if the overall, larger combination of these simpler constructs produces a unique effect.
As for your music example, I disagree there as well. Music accomplishes a very well-defined purpose: that of entertainment. Further, the already-mentioned player pianos are machines controlled by "music"... which is a mechanical purpose, even if no other. The music constitutes instructions or a "program" for the machine. The courts held that in this sense the music was no different from the punch cards that were used to control looms. It's all software... written instructions that achieve a purpose.
Same, same, same.
Further, we have seen how software patents can stifle trade and innovation. Here is an excellent example: when the company that created the compression algorithm used in