Wednesday, May 15, 2013

On Software Patents and Soft Think Judges, Humpty Dumpty Comments

Howdy !

My name is Humpty Dumpty

Come sit a spell with me.

Yes, up here on the wall.
Fresh air.

You know, it's an odd thing.

When the sun enlightens me,
my thoughts get slightly poached
and then scrambled beyond comprehension.
Do bright things do that for you too?
Consider my deep blue thoughts
on the issue of "Software Patents".

I've always said that
I am the master of my thoughts.
My thoughts are not masters over me.
And therefore, "When I use a word, it means just what I choose it to mean, neither more nor less."
Federal Judges operate under the same principle.
They exert command over reality, not the other way around.
The bright sunlight meanings that they project onto words illuminate us all!

Consider as example, this "brilliant" statement:
"When a claim recites patent-ineligible subject matter it is invalid under 35 U.S.C. §101"
EXAMPLE 1: What is claimed is: A support means for a judge's dairy aire
(1) two arm rests;
(2) one buttocks cushioning means;
(3) three flimsy legs to tilt upon; and
(4) a cranial rest means upon which to prop one's heavy headed thoughts.

This claim recites the numbers, 1, 2 and 3; all ineligible.
Ergo, EXAMPLE 1 fails under 35 U.S.C. §101.
One merely needs to seek out the right words within a claim and put a leash around them so as to become their master and not let the other words (the "insignificant" words) clutter one's thoughts.

Let's see how gettin' rid of them "insignificant" words works in another similar situation.
Don't run away
and leave me a sittin' on this wall all alone,
tottering on the edge of excitement.
Hang on.
This next part will be a truly White Rabbit experience for you.
 (Click more to see the next example)

(Sometimes, and for this next example, we have to add Hamburger-Helper-Type SIGNIFICANT words like "[ABSTRACT]" to the recipe in order to help us better spice up our egg-and-sausages scrambling operation. The "insignificant" inserts help us to better remove the "shell" words from the truly SIGNIFICANT words. As you know, all is fair when cooking the books!)


33. A method of exchanging obligations as between parties, each party holding a credit record and a debit record with an exchange institution, the credit records and debit records for exchange of predetermined obligations, the method comprising the steps of:

(a) creating a shadow [ABSTRACT] credit record and a shadow [ABSTRACT] debit [NUMBERS] record for each stakeholder party to be held independently by a supervisory institution from the exchange institutions;

(b) obtaining from each exchange institution a start-of-day balance for each [of the ABSTRACT]shadow credit record and [ABSTRACT] shadow debit [NUMBERS]record;

(c) for every transaction resulting in an exchange obligation, the supervisory institution adjusting each respective party's shadow credit record or shadow debit record, allowing only these transactions that do not result in the value of the shadow [ABSTRACT] debit [NUMBER]record being less than the value of the shadow [ABSTRACT] credit [NUMBER]record at any time, each said adjustment taking place in chronological order; and

(d) at the end-of-day, the supervisory institution instructing ones of the exchange institutions to exchange credits or debits to the credit [NUMBER]record and debit [NUMBER]record of the respective parties in accordance with the adjustments of the said permitted transactions, the credits and debits being irrevocable, time invariant obligations placed on the exchange institutions.

As you can see, once we remove those pesky  inSIGNIFICANT words and add in a small number of sausage-making Helper words like [ABSTRACT] and [NUMBER], it becomes clear even to our yoke covered eyes that we are dealing with abstractions, with manipulating of numbers. We are not dealing with physical computer records and the transmitting of signals between different parties. 

Don't let anyone fool you into thinking that what the applicant regards as HIS invention matters.
 No. We can see through those clever lawyer tricks.
"We" control the horizontal.
"We" control the vertical.
"We" decide what was "truly" invented.

Don't jump off just yet.
There is more !

Judges don't do things without "reason". 
They have an inner compulsion to show how clever they are.
This is true in the Go Ask Alice in CLS Land case.
The judges came up with the following hard maths equation:

1 + 0 = 2

Only the truly wise and loyal to judicial non-activism can understand this.

Consider 101 in it's "unadorned" form:

 “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.” 

35 U.S.C. § 101 (2006). Short and unadorned, § 101 appears deceptively simple on its face.

But foundational § 101 jurisprudence points to the plus factor. 
The period (".") at the end of  § 101 is not a nothing. 

It's a circle. A geometric complex.
The hard hard maths tell us that a line plus a circle equals two geometric items.

1 + 0 = 2
Clever. Aye?
What is inside that circle that come after the "oneness" of  § 101 ?

CLS v. Alice informs us:

Because we are assessing judicially created exceptions
to a broad statutory grant, one of the principles that must
guide our inquiry is that judge-made exceptions to properly
enacted statutes are to be narrowly construed. ... Accordingly, 

the basic steps in a patent-eligibility analysis can be summarized as follows.

[1] We must first ask
whether the claimed invention is

a process, machine, manufacture, or composition of matter. 
If not, the claim is ineligible under § 101. If the invention falls within one
of the statutory categories, we must then 

[2] determine whether any of the three judicial exceptions nonetheless
bars such a claim—is the claim draw_wwwwwww_n to a patent ineligible
law of nature, natural phenomenon, or abstract

If so, the claim is not patent eligible. 
Only claims that pass both inquiries satisfy § 101. 

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