Mucky Mucks Mount Summit Offensive Against US Patent System

[Congressman] Berman [D-CA] is optimistic about the prospects of getting enough Republican votes to pass a [Patent "Reform"] bill in this year's new Democratic Congress. The tech industry will be thankful if some legislation makes it through soon that would get the sand out of the patent processing gears..

Yup, according to this unbiased report about the invitation-only Tech Policy Summit, the most prestigious leaders of world wide technology have hob nobbed together, looked deeply into the heart of the patent system, spotted its "gears" and found that "the system is broken" because there is sand in the gearbox.

Thank goodness. At least somebody is doing the hard hard quality work of collecting numbers, collecting facts, and arriving at rationalized assessments. You would hate to think that our "leaders" are not paying attention to all the unemotional evidence and instead they are being run rougshod over by the K street mind benders.

According to yet another report:

Congressman Howard Berman from Los Angeles, the chairman of the House of Representatives judiciary subcommittee on courts, predicted that the new Democratic Congress would deal with patent reform during the current legislative session. In an on-stage interview at the Tech Policy Summit with Time magazine national political correspondent Karen Tumulty, Berman noted that the pharma companies have opposed patent reform while the tech companies favor it. Berman said that Republicans in league with the pharma companies here-to-date held up the patent reform bill. But technology and financial services companies joined forces to create a groundswell of support for reform. He said that current patent office practices can be detrimental to innovation and the growth of the economy. He is troubled by business method patents and other frivolous patents such as the Double Click patent. .

Yet another unbiased observer was troubled that the Mucky Mucks were "trying to make patent trolling respectable". Obviously the panel failed to realize that "the current patent system had a chilling effect on patent infringement." My oh my. Something needs to be done about this. We can't have a system that chills infringement! "[N]o one on the panel was willing to note that the patent system all too often represents a net negative to innovation." Some more "dirt" on the Summit can be found here. And here and here.

"B" said I, 1.5 Big ones (Jury rules against Microsoft)

Abstract of US5341457 A technique for the masking of quantizing noise in the coding of audio signals is adapted to include geometric interpolation between the thresholds for a tone masking noise and for noise masking a tone, in order to reduce use of bit-rate capability where it is not necessary for transparent or high quality. The technique is usable with the types of channel coding known as "noiseless" or Huffman coding and with variable radix packing. The stereophonic embodiment eliminates redundancies in the sum and difference signals, so that the stereo coding uses significantly less than twice the bit rate of the comparable monaural signal. The technique can be used both in transmission of signals and in recording for reproduction, particularly recording and reproduction of music. Compatibility with the ISDN transmission rates known as 1 B, 2 B and 3 B rates has been achieved. Claims of US5341457 We claim: ... 10. A storage medium manufactured in accordance with a process comprising the steps of: (a) processing an ordered time sequence of audio signals partitioned into a set of ordered blocks, each said block having a discrete frequency spectrum comprising a first set of frequency coefficients; and (b) for each of said blocks: (1) grouping said first set of frequency coefficients into at least one group, each group comprising at least one frequency coefficient; (2) generating at least one tonality value, each group having an associated tonality value, said at least one tonality value reflecting the degree to which said time sequence of audio signals comprises tone-like quality; (3) generating at least one noise masking threshold, each said at least one noise masking threshold being based upon at least one tonality value; (4) quantizing at least one frequency coefficient in said at least one group resulting in a set of quantized frequency coefficients, said quantizing based upon said at least one noise masking threshold; (5) applying a recording signal to said storage medium, said recording signal comprising signals representing said set of quantized frequency coefficients; and (6) recording said recording signal onto said storage medium.

Supplying Components for the Globalized 21st Century

The AT&T v. Microsoft hearing transcript is up on the net. Two words: 1. component 2. supplying Many questions: 1. Is "software" a "component" of a computer? 2. What is "software"? 3. Where does "supplying" (or "causing to be supplied" of 271(f)) end and "assemblying" begin? 4. Which attorney had the compelling argument in DeepSouth Packing? 5. Which attorney had the compelling argument in AT&T v. Microsoft?

Ex parte Bilski meets Zurko (5 USC 706)

One anonymous reader brought the ghosts of In re Zurko back into mind. For those who don't remember, Zurko went all the way to the US Supreme Court (Dickinnson v. Zurko). The linchpin of the Zurko decision was 5 USC §706:

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES PART I--THE AGENCIES GENERALLY CHAPTER 7--JUDICIAL REVIEW Sec. 706. Scope of review To the extent necessary to decision and when presented, the reviewing court [i.e. the Fed. Cir.] shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-- (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

Following on the heels of Zurko's I-III, one can find the following in the MPEP:

"[T]he Board cannot simply reach conclusions based on its own understanding or experience-or on its assessment of what would be basic knowledge or common sense. Rather, the Board must point to some concrete evidence in the record in support of these findings."

In Ex parte Bilski we find numerous references to "machine" with a concommitant assumption that human beings can never be viewed as falling under the definition of "any" machine and that process carried entirely by operation of the human machine can never qualify as "any" process. More to the point, at pages 6-7 the Bilski panel concludes:

We do not believe the outcome of this case is controlled by ... State Street and ATT v. Excel because ... those cases involve the "special cases" of transformation of data by a machine. ... In recent years the USPTO has been flooded with claims to [alleged] "processes", many of which bear scant resemblance to classical processes of manipulating or transforming compositions of matter or forms of energy [Did you catch that about "energy"?] from one state to another.

And then midway into page 8 we fumble but then catch hold about this deep insight regarding the Heimlich Manuever and its ilk:

Still other process claims involve [mere] physical human activity --methods of throwing a ball or causing a fumble. Do these process claims cover patentable subject matter? Must [we, the poor, the hudled, and the tired USPTO] analyze such claims for compliance with written description and enablement requirements, and [oh my] search the prior art for "evidence" of novelty and nonobiousness [oh my]?

(The sarcasm in brackets [..] is obviously added here. The point is to get you people out there to slow down your speed-reading habits and to start critically analyzing some of the absurd assertions made even at the Board level of the USPTO. Are these assertions founded on "evidence" in the record and on sound logical reasoning? Or are we witnessing a hysterical PTO, drowning under the "flood" of such recent "process claims"?) At the bottom of page 9 comes this imparting of wisdom: "The Fed. Cir. cannot address rejections that it does not see." ... To Be Continued (page 31, item (24) ... page 35 bottom the Board is not bound by guidelines ..but does like to watch Pirates of the Caribbean ... pg 43: the steps of c1 do not transform ... )

Ex parte Bilski --What computer? I don't see no computer.

The image to the right (click to enlarge) is Figure 2 of 5 as shown at the WIPO site for a different Bilski patent app. It's not the same as Bilski US app 08/833,892. (To err is human. To really make a fool of oneself calls for blogging on the Internet.) The reason for my interest in the Bilski case is so that we can test the rhetoric of the Ex parte Bilski panel of 5 against the facts. They seem to imply that Bilski's "invention" does not have physicality, but rather that it is mere abstraction at its core. But before doing the deep dive in that direction, let us step back and examine 35 USC 101. It seems that too many people insist on interpreting 101 as a definition of "what" can or cannot be patented. I apologize for refusing to go along just to get along.

§ 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Firstly, for those of you out there who are going to insist that 101 is the "exclusive" provision governing what can or cannot be patented, here is a little monkey wrench for inclusion in you imagine-notions:

§ 161. Patents for plants Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided.

Careful attention to language will show that 101 establishes an open-ended class of people, the "Whoever" who "may" obtain a patent. 101 does not say these are the only people. It says, at least these people who have performed one of an enumerated set of acts, is a person who may obtain a patent. 101 does not say anything about claims. It does not say what an inventor may not claim. It merely says that a "Whoever" who performs the act of inventing or discovering may obtain a patent for having done so. The act is that of inventing or discovering "any" process, "any" machine, "any" manufacture, or "any" composition of matter or "any" improvement thereof (not "therefor") that is new (novel) and "useful". So does Bilski's rejected claim recite an "any" process that is "useful" and novel? Lets' review an annotated copy of Bilski's claim 1:

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate correspoding to a risk postion of said consumer; (b) identifying ... (c) initiating a series of transactions between said commodity provider and...

Page 5 of the Bilski panel-of-5 decision is entitled: "Non-machine Implemented Methods". (Call me stupid, but aren't methods of administering therapeutic dosages of known chemical compounds (medicines) also "non-machine" implemented ones? Isn't the Heimlich manuever a non-machine implemented method? That said, let's keep going.) The BOPAI panel further asserts without any deep digging into definitions that machines, manufactures and compositions of matter "represent tangible physical things". So I suppose that if I invent a new composition of gases for release into the atmosphere everyone will immediately see such stuff as being "tangible". OK. And I guess if I release this novel tangible stuff into the atmosphere by means of removing my thumb from the top of a containment vessel (i.e. a plastic soda bottle with no machine valve on it), that is a "non-machine implemented method". And when the gases disseminate into the atmosphere that is a physical event. However note that at the top of page 6 the Bilski panel says that "non-machine implemented methods [are] abstract in nature [and thus] present 101 issues". Aha. One can see that sheer genius is at play here. Continuing at page 6 of the Bilski panel-of-5 decision, the panel finds:

"The steps of claim 1 do not recite any specific way of implementing the steps".

Hoo Ha there boys. Please ease back on the throttle of your intellectual race car. Here is an example of a claim that does not recite any specific way of implementing its steps:

What is claimed is: A method of doing stuff comprsing: (a) performing a first step, (b)performing a second step, and (c) performing a third step.

Got it? Get it? Good. I want people to insert fresh new batteries into their run-down thinking caps. Where has all the "critical thinking" gone? Are you all stoned out of your minds on that Beltway Booze? I apologize for being "irreverant". However, too much PC is a bit like too much Kool Aid at Reverend Jones's Guinea Getaway. Moreover at page 6, the Bliski-bashing brotherhood finds:

"The steps of claim 1 do not ... expressly or impliedly recite any physical transformation of physical subject matter, tangible or intangible (??) from one state into another".

Now wait one fiberous plant picking moment there. If I initiate another human being (i.e. a commodity provider or a consumer) into engaging in a "transaction", have I not caused a transformation of physical state, shifting the physical object (the human being) from the energetically lower state of "not transacting" to the energetically higher state of "transacting"? Have I not altered the thermodynamics of the situation? Is it possible to engage in a "trans-action" without the action of even a single muscle? How can one say there isn't "any physical transformation ... from one state into another"? Again. There used to be a thing called critical thinking. Where has all the critical thinking gone, long time not seen? The answer my friends is blowing in the ... oh never mind. Yet further at page 6, the Bliski-bongling brotherhood finds:

"The steps of claim 1 do not ... recite [hey where's the good 'ole directly or indirectly?] any electrical, chemical or mechanical acts or results

Once again fella's hold back on your fiberous plant plucking ways. If I initiate another human being (i.e. a commodity provider or a consumer) into engaging in a "transaction", have I not inherently caused at least an electrochemical act in the cranium of that being by initiating the "act" of trans-"acting"? P.S. Have I initiated any electrochemical acts in the craniums of you readers out there? Huh? Have I?

Ex parte Bilski --rotten to the core

Where to begin on this 71-page masterpiece? Maybe the best place is with Judge McQuade's concurrence on page 71:

Considered collectively, these are powerfully persuasive factual indicators (not tests) that the method recited in claim 1 is, at its core, a disembodied business concept representing nothing more than a non-statutory abstract idea. That the "initiating" and "identifying," steps recited in the claim are drafted as acts required to be performed is of no moment. Given the full context of the claim, these- acts are nominal in nature and merely serve to superficially couch the appellants' abstract idea in a method or process format. For these reasons, the examiner's determination that claim l, and claims 2-11, which stand or fall therewith, are directed to non-statutory subject matter under 35 U.S.C. §101 is well founded.

That's the ticket then. We will start with the evil applicant's "abstract idea" and then clothe it with these "nominal in nature" acts (initiating, identifying, initiating) and then we will strip away the clothing --all the while seeing the claim in its "full context"-- and then whalla, we are back staring at the "abstract idea" which fills the rotten core of this applicant's apple. Heck, apples are circular. Apples are phenomenon of Nature. Therefore this kind of circular logic is perfectly natural and "well founded" on stilts of solid logic. Makes sense to me. With that "powerfully persuasive" chapter out of the way, we can proceed to the majority conclusion on page 65 regarding oral arguments: ... to be continued

Ex parte Bilski --initiating a transaction is not real

Sorry folk. I'm not going to have time to expound on this one today. (Have to do that evil stuff today, you know, billable hours.) According to a recent "informative" opinion published by the Board of Appeals, Ex parte Bilski, a method claim that includes the real world action of initiating transactions between real consumers and real commodity buyers is a dream, a mere abstarction. --I haven't read deeply into it. This is just a fast & furious peek. It's a post Lundgren decision that resurrects the "technological arts" rejection. Back later. See ya.

Jurassic Jumbo-Mumbo

Michael Crichton is allegedly an admitted plagiarist with an anti-science bend. He is also a crafty manipulator of words and emotions. The New York Times recently published Chrichton's opinion on "gene patents", aka: "Patenting Life". How does Chrichton get away with such Jurassic Jumbo-Mumbo? Let us study his ways. Here are his opening two sentences:

YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, it’s only too real.

Speaking of "YOU" --and we just love this topic, don't we?-- it is quite evident that you are "smart". After all, You read THE New York Times. You are conversant in matters of technology, law and public policy. You enjoy a good debate that flexes the old cerebral cortex muscle. This right up your alley. So how long did it take for the smart you to read Crichton's opening sentences? (Did I say two? Did you trust me? Did you count? Actually there are three.) So how long did it take you? What do you say? Maybe 2-5 seconds? Why so slow? Perhaps you took one of those speed reading courses that makes you special, makes you faster than ordinary mortal men? That's right. Admit it. You are special. You zipped through that baby in under 1.718 seconds. Retention rate was a cool 100%. That's right baby! High five. Conscious comprehension? Close to zero. Huh? Zero? What did YOU miss? Did you notice that Crichton is methodically firing up the different parts of your brain so as to get an emotional rise out of you? He immediately mentions "you" and "love" and fear of "death"; followed by a "because" that fools your brain into thinking that an actual "reason" follows close behind. It doesn't. Instead what follows is more mixed messaging into the different parts of your brain. First Crichton conjures up some undefined "gene patent" as the cause of your death (or of your loved one's demise). Then Crichton injects a backward in time suggestion about this evil "gene patent" being something that --assuming it exists, which it doesn't because Crichton is talking about specualtive events in the future, i.e. your death and the existence of this allegedly causal patent-- as if it already happened. Did "you" notice the mid-sentence switch in tense? First Crichton is describing the future (your imminent death) and suddenly he is in the "should have been" past. He convinces your brain that this after-the-future past actually occurred "in the first place". And you buy it without a second's hesitation. Why else did he insert that gratuitous phrase, "in the first place"? Did "you" have time to think about it? Well maybe not you. But you and you (those other parts of your brain) did catch all of that and they started processing it. However, in the split second before your brain might start questioning what is going on, Crichton throws you a suspension of disbelief pitch: "Sound far-fetched? Unfortunately, it’s only too real." Yup mind manipulation is only too real. But go ahead and laugh it away. Ha ha ha. No, not me. I'm not fooled by these psycho-linguistic tactics. I'm special. Why I spotted them right away. None of that can work on me. I did love his movies though. Especially the parts where the drum beat goes up and my heart beat subconsciously increases in response and then my brain senses that I'm scared or excited or both. Ha ha.

Rocky Patent Horror Show (Part Deux)

We continue with our "stepped back" look at Janet Beth's scholarly work by focusing attention on this next paragraph at page 127:

What if we could reform the application process and guarantee better patents before costly litigation? What if we could ensure that only the most worthwhile inventions received twenty years of monopoly rights? What if we could offer a way to protect inventors’ investments while still safeguarding the market from bad patents? What if we could give the scientific community a voice in determining whether an invention was truly novel or obvious? What if we could make informed decisions about the scientifically complex issues posed by patent law before the fact?

What an interesting turn of phrase: "only the most worthwhile inventions". From what little I recall of logic and language construction, there can be only one invention that qualifies as the "mostest". All other inventions are at best, disgruntled runner ups in this beauty pageant. So which invention measures up? Which is the "mostest"? Sliced bread, the telegraph or the light bulb? All other inventions clearly need to wither away in the brilliance of these golden standards. And then of course, there is the promise of a money-back "guarantee" from this new peer-to-peer process. Somehow, the "truth" will come out as to which inventions are "truly" novel and "truly" nonobvious. Finally, but not the least important of points, "the markets" will be "safegaurded" just as surely as they are from bad meat and securities fraud. Now I feel so much safer with Janet Beth's peer-peer system in place to safeguard little 'ole me. After all, this is what it's about isn't it? It's all about "safeguarding" the little guy. Page 131, the stepped back examination continues:

An industry has arisen in Patent “Trolling,” where Participants Seek Patents Solely for the PurpoSe of Initiating Infringement lawsuits and extorting licensing fees from competitors without Producing any Product or bringing any Innovation to The Market. ... This means, for example, that the oil industry could patent solar energy inventions that will be put on the shelf and never used. Since “anything under the sun” can be patentable subject matter and more people are filing patents than ever before, the field is fertile for companies seeking to patent undeserving inventions and to profit from the threat of litigation rather than from productive research and development. Of course, patenting activity may also reflect productive invention. But a low quality patent over a fundamental research method, if issued, runs the risk of impeding downstream invention and hampering scientific innovation.

So there you have it. Janet is protecting us little guys from those evil, extortionist "trolls". You know how you read about it in the papers all the time. Some poor, penniless business man who is struggling to make his daily payroll is suddenly swept away by an under-the-bridge, low handed "Troll" who was sitting there with one Sole and souless intent festering in his troll-like corpse: to extort the life blood out of unwary innocents. In the mean time, the richest and most wealthy of corporations are never bothered by independent innovators (where the latter are conveniently transmuted from human beings into "trolls" thanks to the efforts of the corporate mind squads). Oh no. It is not possible that such corporations could be funding the "scholarly" and objective research of unbiased academicians. I would be shocked, shocked to think that something of this underhanded sort might take place in this great country of ours. I would be even more shocked to discover that trusted scholars are being encouraged to repeat certain catch phrases in their works over and over again. In Janet Beth's scholastic article: "peer" ... 127 times "scien"[ce]... 103 times "public" ... 85 times "community" .. 73 times "expert" .... 64 times "technolog"[y}. 51 times "quality" .... 46 times "REFORM" ..... 31 times "obvious" .... 26 times "innov"[ation].. 19 times "valu"[e] ... 18 times "social" ... 15 times "trust" .... 12 times "collective" .. 9 times "bad" .... 6 times "troll" ...... 2 times "worth" [-while, worthy] ... 6 times "examiner" ... 99 times "invent" ... 80 times Worse yet. I would be Profoundly Shocked, Perplexed and Stuperfied to discover some underlying psycho-linguistic implant Pattern (P-S-P-S-P-S) that accidentlay and out of toal random coincidence became fundamentally and collectively integrated into the writing.

Patent Horror Picture Show

Why pick on poor "Janet" Beth N. and her trollala article about Peer-to-Peer patent review as featured at Patently-O? I don't having anything personal against Janet Beth. She is probably quite a nice person. It's just the choice of language in her scholalry article (warning: pdf file) that gives me pause. Lets start with a sampling of the the opening paragraph in the "Introduction" (before we get to that luscious Chapter II. THE PARADE OF HORRIBLES: INFORMATION DEFICIT AND PATENT QUALITY):

There is a crisis of patent quality. Patents are being issued that are vague and overbroad, lack novelty, and fail the constitutional mandate “[t]o promote the Progress of Science and useful Arts.” Low quality patents generate excessive litigation and confer the economic rewards of monopoly on patent holders while providing little benefit to the public. [footnote points to another article about how "OUR BROKEN PATENT SYSTEM IS ENDANGERING INNOVATION AND PROGRESS"]

"Crisis" of quality? Oh my! That sounds like the alarm bell for emotional hysteria. But where are the quantitative numbers to back it up? What percentage of the over 7,000,000 US patents issued thus far have been adjudicated by a court of last resort as being "vague and overbroad"? (Yes, we all know that evil William F. Morse got his come upin's at the US Supreme Court for having had the audacity to think his "telegraph" thing was something worthwhile and that he should be entitled to all manner of use of the "electromotive force". But what after that? How many indefintiteness and overbreadth rulings out of the 7 million? Shouldn't we have numbers?) And if all these patents "lack novelty" (where is the proof?) does that not mean that all those Examiners at the esteemed US Patent and Trademark Office (USPTO) are asleep at the switch? Does that not mean they are all absent mindedly rubber stamping every application as "allowed"? No wonder our system is "broken". Look. There is even proof right here: As one can readily see, nearly 99 and 44/100th's per cent of all patent applications are being allowed without any examination and matters are clearly getting worse.

Paradise Lost

My commenting wings have been clipped-off at Patently-O. I can no longer soar with the other commenting angels there and deposit my 30 cents worth of silver tongued-attitude. What to do?

Cry?
Beg for forgiveness?

Or write an epic comeback worthy of Milton from my own little private hell spot? Truthfully, I'm not going have time for writing epics of the caliber of Paradise Lost.

This is just going to be a small, underwater vent hole from Hades.