Tuesday, April 24, 2007

Functional / Non-functional DoubleTalk / Non-Double Talk

Is it just me, or does this run of logic from a recent BOPAI decision make any sense to you?

"When non-functional descriptive material is recorded on some computer-readable medium, in a computer or on an electromagnetic carrier signal, it is not statutory since no requisite functionality is present to satisfy the practical application requirement. Merely claiming non-functional descriptive material, i.e., abstract ideas, stored in a computer-readable medium, in a computer, on an electromagnetic carrier signal does not make it statutory. See Diamond v. Diehr, 450 U.S. 175, 185-86, 209 USPQ 1, 7-8 (1981) (noting that the claims for an algorithm in Benson were unpatentable as abstract ideas because “[t]he sole practical application of the algorithm was in connection with the programming of a general purpose computer.”). Such a result would exalt form over substance. In re Sarkar, 588 F.2d 1330, 1333, 200 USPQ 132, 137 (CCPA 1978) (“[E]ach invention must be evaluated as claimed; yet semantogenic considerations preclude a determination based solely on words appearing in the claims. In the final analysis under 101, the claimed invention, as a whole, must be evaluated for what it is.”)"

First off, how does one store "abstract ideas" in a physically real storage medium? If they are abstract, the ideas don't exist in the real world. They belong to the existentially abstract nether world. So what is the PTO's BOPAI talking about?

And speaking of double talk, how can something be "descriptive" and yet non-functional? Doesn't being descriptive inherently provide the function of describing something? What makes a functionality a "requisite" one? Isn't that just circular logic where the rejection supports itself by powers of self-levitation?

Makes no sense to me. But then again, I am just another abstract entity on the abstract Internet. So please do not pay any attention to these rantings.

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