Wednesday, November 19, 2014

Sucking On the Ole' Abstractionist's Pipe

Hat tip to an unwitting patent-hater on Gene Quinn's blog

It seems he's stumbled onto the post-modernistic abstraction/ reality dilemma.
Our judges can no longer distinguish between the pipe and the painting thereof.

To be, or not to be continued? (Time will tell)

So, somewhere deep in the latest Ultramercial decision,
Judge Lourie says,
"We first examine the claims because claims are the definition of what a patent is intended to cover."

(Not exactly correct, but at least somewhat close to the mandate of 35 USC 112: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.)

The patent statute (section 112) teaches us that claims are intended to provide, with English words, a bill of particulars that "particularly point out" the subject matter which the inventor (not the judges) regards as the invention.
The patent statute (section 112) also teaches us that claims are intended to distinguish the subject matter (to "distinctly claim") over prior art and over what the inventors does not regard as the invention.

Soon after in the Ultramercial decision, Judge Lourie says,
"Without purporting to construe the claims, as the district court did not, the steps include: (1) receiving ... from a content provider; (2)selecting ... after consulting an activity log to determine whether ... played less than a certain number of times; (3) offering ... on the Internet; (4) restricting ... access (5) offering ... in exchange for watching the selected ad; (6) receiving a request ...(7) facilitating display... (8) allowing access to the media; ... (10) updating the activity log; and (11) receiving payment ..."

Whoa! You're going to not construe, but you're going to construe but you're not going to PUPORT to construe?
What kind of 1984 double speak is that?

Then Judge Lourie switches from his purporting (through an Interstellar wormhole?) that a claim "defines" to instead seeing a claim as a "recitation":

"This ordered combination of steps recites an abstraction—an idea, having no particular concrete or tangible form."

So basically, our poetry-reciting judge has thrown out all the particulars that the inventor has bothered to "particularly point out" and replaced them with invisibility, with mere but poetic abstraction.

And then he says, Why lookie here, we taint got nottin but abstractionism.

Who's inhaling too deeply on the surrealistic pipe now Watson?

Saturday, November 15, 2014

Salem Witch Hunts in a Post-Technological World

Struggle Struggle.
Troll and Bungle.
Slowly the Ouija cauldron churns.

"Oh Great Ouija, Oh conduit to the spirit world,
couple us wilt though to the spirit of the great and powerful J Giles Rich"

"Is that you for real Giles?
Do you see the auras emanating from this here patent claim?

Oh pray tell us ghostly Giles,
Is it abstract or even more abstract?
Or perchance
Is there something ... something more?
Something so significantly more ...
that it makes one wish to pass mustard?"

"We are so lost Giles,
since Alice has gone off to Blunderland.
These Ultra-Myrtles give us ultra migraines."

"How are we to divine the direction of each claim?
Oh it bee-ith so TECH-NO-NO Logical
and yet anciently conventional at the same time.
What should we do oh spirit of the Great Giles?
What should we do?"

"What's that oh apparition?
You prefer geriatrically generic catchup?
Not mustard?

So, all kidding aside,
and tongue withdrawn from Shakespearean cheek,
we have moved into a post-technological era
in which geriatric judges who knoweth not even how to use the emails
have come to conclude that they know what them there Internets are all about.

They know an "abstractly directed" patent claim when they see one.
They know when the crafty patent practitioner drafstmen have failed to give them something of greater significance and "preciseness" (the new catch word of Ultramercial).

Better watch out this XMAS holiday season, they even know when you have been bad or very very judge-bribing bad.
To be ... as usual ... continued (some day)

Thursday, November 6, 2014

Disembodied Ideations

I have not figured yet how to best introduce this post's topic. (Perchance it is because I am too unliberated and feel myself trapped in the reality dimension.)

Numerous voices out there seem to proclaim that "ideas" spontaneously come into being from a mere coalescence of other ideas and all are divorced from physical essence, physical reality and the rules of physics.

Take for example a book by Steven Johnson "How we got to now, Six innovations ...". In the linked-to Book TV video he proclaims that problems get solved once we have the right "constellation of ideas" coalescing on what the problem is (what the "next" is) and then the rest (the innovation) is inevitable (see 48:50/55:26 of the video) once this right set of "ideas" come into the mix --see 40:00/55:26 of the video, in the Q&A section. Is that right? Is it merely "ideas" divorced from brick and mortar reality that are needed for "innovation"? Should we get rid of patents as Mr. Johnson suggests in his Q&A session so that ideas become "free" to be spread and to be built upon? (See also, "Information Wants to Be Free" in Economy of Ideas)

Some proponents of this concept of disembodied and free floating ideas perhaps have experienced "out of body" existence where they feel themselves freed and floating apart from their mortal anchor.
Maybe they have come to conclude that "mind" is separate from body and that "ideas" alone is all it takes to get to the "next" great thing? Frankly I don't know. But if that is how they "feel" about the workings of the universe then they are greatly deluded. There is no such thing as a "free" floating idea. There are no free lunches in this universe. Maybe in another one. Not in this one.

Let's start with a simple "scientific" experiment.
Clamp your fingers shut tight on your nose (step 1)
Shut up your mouth and keep it that way (step 2)
Start thinking of some free floating "ideas" (step 3)
Measure on a clock how long you can sustain this free lunch idea generating process (step 4)

You gave up. Right?
That is because the universe abhors free lunches.
At the very minimum you need a thing called "energy" to have ideas.
In truth you need and use much more than that to have and generate ideas.
The experimental proof here is that your "mind" is not divorced from your physical body and your lungs had better be supplying not-free oxygen to your brain if you want to keep the idea factory going.

Where will this road of inquiry into disembodied ideation lead when done?
To Alice of course.
To the "abstract ideas" aspect of Alice v. CLS and to the astral projectionists who provide Alice's notion of disembodied and "abstract" ideation.