In reality, though, the categories of "things you can do with a PC and software" and "things you can do with a peripheral" are not mutually exclusive.
Take VoIP, for example. We have VoIP software for use with a computer, webcam, and mic. Yet we also have standalone VoIP devices that perform substantially the same functions. These devices are basically stripped down computers.
So what of that? VoIP on the computer does not deserve patent protection, but the same technology on a stripped down device does?
I certainly appreciate your interpretation, but I would counter with this point:
Without getting into too much detail, the physical transformation inquiry only arises (at least in this context) when an invention is an "abstract idea." Method claims often fit this bill.
However, computer hardware is physical, tangible, and concrete--it is not merely an abstract idea. Thus the physical transformation inquiry is not apposite.
People seldom consider the implications of abolishing software patents.
Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.
Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.
It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.
So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.
I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.
I'm not saying the court was right--I'm trying to shed a little more light on the playing field.
From a completely subjective point of view, the thrust of your argument makes intuitive sense--why should a method that is not patent eligible be able to skirt this result by reciting a general purpose machine for its execution?
Unfortunately, in the legal world, intuition must sometimes give way to legal formalisms.
In this case the formalisms are the statutory categories of invention. Processes (methods) constitute one distinct statutory category, and machines (apparatuses) another.
Getting back to your point, you are correct to say that, after Bilski, a method (process) claim that is otherwise not patent eligible may not become eligible by simply providing that the disclosed method is executed on a general purpose machine (computer).
HOWEVER, an apparatus claim is separate and distinct from a method claim that is tied to an apparatus.
So while it is true that tying a method claim to a general purpose computer is not sufficient to overcome Bilski's machine requirement, it remains true that the holding of Bilski DOES NOT APPLY TO APPARATUS CLAIMS.
As an example, consider the following:
Method claim: "A method of... comprising the steps of...."
Method claim tied to a general purpose computer: "A method of... executed by a computer processor, comprising the steps of...."
APPARATUS claim: "A computer readable storage medium containing instructions, when executed by a computer processor, operable to...."
Remember, the Federal Arbitration Act strongly favors the enforceability of arbitration agreements.
This case likely came out the way it did because the practical implications of arbitration (in this specific case) would result in an unjust bias favoring Second Life or would make dispute resolution prohibitively expensive.
A classic case regarding the enforceability of arbitration clauses is Adkins v. Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002) (upholding an arbitration agreement in an employment contract where the plaintiff could not show unconscionability or failure of consideration).
While the enforceability of clickwrap agreements is a contemporary and evolving area of contract law, I don't think the implications of this decision are very far-reaching. This case deals specifically with an arbitration clause and so is a unique situation.
I haven't read the opinion, but I suspect that the court held specifically that the arbitration clause was unconscionable as opposed to the entire clickwrap agreement. That is certainly important to note--the agreement may still be otherwise enforceable notwithstanding the arbitration clause.
Of course, no one denies that the patent system needs change--most likely a significant reform. The Patent Office knows this!! They are currently hiring thousands of examiners to help deal with the backlog. They have instituted hotelling programs to allow examiners to work from remote locations, thus freeing up valuable office space for new examiners. The Office is constantly developing new search tools to better help examiners locate prior art, especially for business method and software patents which can be very hard to invalidate.
Remember, the law as it currently stands states, "A person shall be entitled to a patent unless..." Thus, the burden is on the examiner to PROVE that a patent should not be granted. This can be VERY hard, even when the technology appears clearly to be unpatentable.
I have to say, I am very surprised at some of the comments coming from such an educated group of people. Destructive criticism will get us nowhere.
Notwithstanding the problems of our current system, patents ARE important for protecting innovation. Countries from around the world recognize this, and, believe it or not, try to emulate our system for the protection of intellectual property.
Give the Patent Office some credit here. This is a DRASTIC and REVOLUTIONARY change they are trying to institute here. It is VERY progressive, and it seems very in-tune with the open-source trend in information sharing and collaboration. They clearly recognize the need for change, and they really are working to find the right solution.
So before you start ranting about how the patent office sucks and how patents should be abolished. Take some time to think about why patents fundamentally encourage and protect innovation, and why the job facing the Patent Office is not so easy.
Again, everyone is looking for a better solution. That is why the Office is testing this program! Maybe it will work, maybe it won't. One thing, however, is sure: unhelpful and unreasonable criticisms from close-minded individuals do not help.
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In reality, though, the categories of "things you can do with a PC and software" and "things you can do with a peripheral" are not mutually exclusive.
Take VoIP, for example. We have VoIP software for use with a computer, webcam, and mic. Yet we also have standalone VoIP devices that perform substantially the same functions. These devices are basically stripped down computers.
So what of that? VoIP on the computer does not deserve patent protection, but the same technology on a stripped down device does?
I certainly appreciate your interpretation, but I would counter with this point:
Without getting into too much detail, the physical transformation inquiry only arises (at least in this context) when an invention is an "abstract idea." Method claims often fit this bill.
However, computer hardware is physical, tangible, and concrete--it is not merely an abstract idea. Thus the physical transformation inquiry is not apposite.
People seldom consider the implications of abolishing software patents.
Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.
Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.
It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.
So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.
I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.
I'm not saying the court was right--I'm trying to shed a little more light on the playing field.
From a completely subjective point of view, the thrust of your argument makes intuitive sense--why should a method that is not patent eligible be able to skirt this result by reciting a general purpose machine for its execution?
... comprising the steps of ...."
... executed by a computer processor, comprising the steps of ...."
...."
Unfortunately, in the legal world, intuition must sometimes give way to legal formalisms.
In this case the formalisms are the statutory categories of invention. Processes (methods) constitute one distinct statutory category, and machines (apparatuses) another.
Getting back to your point, you are correct to say that, after Bilski, a method (process) claim that is otherwise not patent eligible may not become eligible by simply providing that the disclosed method is executed on a general purpose machine (computer).
HOWEVER, an apparatus claim is separate and distinct from a method claim that is tied to an apparatus.
So while it is true that tying a method claim to a general purpose computer is not sufficient to overcome Bilski's machine requirement, it remains true that the holding of Bilski DOES NOT APPLY TO APPARATUS CLAIMS.
As an example, consider the following:
Method claim: "A method of
Method claim tied to a general purpose computer: "A method of
APPARATUS claim: "A computer readable storage medium containing instructions, when executed by a computer processor, operable to
Unfortunately, this patent contains apparatus claims as well as method claims.
The Bilski decision was limited to method claims, and so it won't apply without a fairly liberal extension of that holding.
He's moving to get as far away as possible from the Large Hadron Collider. Genius.
Remember, the Federal Arbitration Act strongly favors the enforceability of arbitration agreements. This case likely came out the way it did because the practical implications of arbitration (in this specific case) would result in an unjust bias favoring Second Life or would make dispute resolution prohibitively expensive. A classic case regarding the enforceability of arbitration clauses is Adkins v. Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002) (upholding an arbitration agreement in an employment contract where the plaintiff could not show unconscionability or failure of consideration). While the enforceability of clickwrap agreements is a contemporary and evolving area of contract law, I don't think the implications of this decision are very far-reaching. This case deals specifically with an arbitration clause and so is a unique situation. I haven't read the opinion, but I suspect that the court held specifically that the arbitration clause was unconscionable as opposed to the entire clickwrap agreement. That is certainly important to note--the agreement may still be otherwise enforceable notwithstanding the arbitration clause.
Of course, no one denies that the patent system needs change--most likely a significant reform. The Patent Office knows this!! They are currently hiring thousands of examiners to help deal with the backlog. They have instituted hotelling programs to allow examiners to work from remote locations, thus freeing up valuable office space for new examiners. The Office is constantly developing new search tools to better help examiners locate prior art, especially for business method and software patents which can be very hard to invalidate.
Remember, the law as it currently stands states, "A person shall be entitled to a patent unless..." Thus, the burden is on the examiner to PROVE that a patent should not be granted. This can be VERY hard, even when the technology appears clearly to be unpatentable.
I have to say, I am very surprised at some of the comments coming from such an educated group of people. Destructive criticism will get us nowhere.
Notwithstanding the problems of our current system, patents ARE important for protecting innovation. Countries from around the world recognize this, and, believe it or not, try to emulate our system for the protection of intellectual property.
Give the Patent Office some credit here. This is a DRASTIC and REVOLUTIONARY change they are trying to institute here. It is VERY progressive, and it seems very in-tune with the open-source trend in information sharing and collaboration. They clearly recognize the need for change, and they really are working to find the right solution.
So before you start ranting about how the patent office sucks and how patents should be abolished. Take some time to think about why patents fundamentally encourage and protect innovation, and why the job facing the Patent Office is not so easy.
Again, everyone is looking for a better solution. That is why the Office is testing this program! Maybe it will work, maybe it won't. One thing, however, is sure: unhelpful and unreasonable criticisms from close-minded individuals do not help.