Tuesday, April 1, 2014
Close Patent Encounters of the Go Ask Alice Kind
Well, thanks to the oral hearings transcript (here)
and tape recorded orals (here)
for March 31, 2014
we finally have first contact
(of the King Tut kind) with
the mythologies, thoughts and fantasies that are bubbling and troubling within the heads of our Supreme Court Justices.
The crux of the issue,
in Alice v. CLS [Big] Bank
apparently revolves around "ideas" and not just ideas, but those of the subclass, "abstract" (as opposed to those of the subclass, "concrete") and the triviality of "coding" it once the idea is stated.
According to Justice Ginsburg there is a
"degree" of abstractness in
each of the " abstract ideas".
Some ideas are apparently more abstract than others.
Page 4 of oral hearing transcript:
5 JUSTICE GINSBURG: Mr. Phillips, on the
6 abstract idea [thing], you know that the Bilski case held that
7 [computer-implemented] hedging qualified as an "abstract idea."
So how is ... 8 [computer-implemented financial and] intermediate
settlement [any less of an] abstract [idea] than [Bilski's] hedging?
According to Justice Kennedy, irrespective
of whether an "idea" is abstract or concrete,
once you have it, and state that idea to any handful of computer geeks, implementation is trivial:
Page 5, line 7:
7 JUSTICE KENNEDY: Well, let me put it this
8 way. If you describe that [(where "that" may refer to the whole of Alice's patent disclosure as summarized by PHILLIPS at pg 4, ln 16-pg 5, ln 6)] to a second year college
9 class in engineering and said "here’s my idea,"
10 now you go home and
you program ["that" on a single "computer"] over this weekend, my
11 guess is my guess is that that would be fairly easy
12 to program [because "programming" is all that is needed].
Page 12: (more on triviality of coding)
8 JUSTICE KENNEDY: Suppose I thought and,
9 again, it’s just a thought because I don’t have the
10 expertise that any computer [-savvy] group of people sitting
11 around a coffee shop in Silicon Valley could do this
12 over a weekend. Suppose I thought that.
13 MR. PHILLIPS: You mean wrote the code?
14 JUSTICE KENNEDY: Yes, right. [All that is needed is to write "code".]
Page 5: (continued from above)
15 JUSTICE KENNEDY: So the fact that the [one --(not true), see US5970479 at right]
16 "computer" is involved, it it seems to me, is necessary
17 to make it [(the whole system)] work.
But ... the innovative aspect
18 is certainly not in the creation of the program to make
19 that work [because programming is what any coffee clutch worth ..
of Silicon Valley nerds can do]. All you're talking about
[after stripping everything away, despite what 35 USC 112 says about inventor's regard]
is if I can use ... 20 the word [is merely] an "idea."
[In other words, in so far as what I, Kennedy J. understand, you are claiming no more than "an idea"!]
[... post still under construction ...]
SOME CASE ASPECTS ARE LEFT OUT OF THE ORAL HEARINGS THOUGH ...
(Click Read More to read on)
Left out is a discussion about the patents themselves --what they disclose
Left out is a discussion about the claims themselves --what the inventor regards as his invention per 35 USC 112
Left out is a discussion about why CLS is a Too BIG Too FAIL BANK
Well not really. Justice Breyer hints at his strange love for TBTF Banks (Too Big To Fail) in his comic discussion about patents being "monopolies":
23 JUSTICE BREYER: Can you in fact now, …
2 … I mean, you know now, the problem
3 that I came away with is the one that you’re beginning
4 to discuss, that if you simply say, take an "idea" that’s
5 [of the kind,]abstract and implement it [(trivial of course)]
on "a computer," [then by that] there are
6 you’re going to get it much faster, you’re going to be
7 able to do many, many things [simply by using a "computer"],
and if that’s good enough [to bestow you a "patent"],
8 there is a risk that you will take [away] business in the
9 United States or large segments [of it by monopoly] and instead of having
10 competition [between one TBTF Bank and d'oh nobody else,
based] on [good 'ole] price, service and better production
11 methods, we’ll have competition [based merely] on who has the best
12 patent lawyer. You see where I’m going on that one?
[Inset note: Yes we do Justice Breyer, yes we do. You have a strange and unabashed love for TBTF entities like CLS (See: Who is CLS International?)]
Alice CLS googled here