Wednesday, November 25, 2015

Anti-Patent Coders can never be wrong because they have purely logical biological brains

Let's face it.
To be human is to be fallible to the illogical.

To be human is to be susceptible to emotion rather than reason.

In this post we examine one particular article:
How to Misunderstand Free Software
which includes illogical, ill-informed anti-patent sentiments.

At one point the article proclaims:
"Copyright is very important ... Patents in software, on the other hand, are a very controversial concept. To put it shortly: there is no such thing as a "patented software". By registering for a patent, however, someone can claim ownership over a process. The patent then applies to all software that use this process, whether proprietary or free.

[Note: The author does not understand copyright law. A copyright protects a specific "expression" as affixed in a tangible medium. It does not protect inventions.]

[Note: The author does not understand patent law. One does not "register" a patent and one does not claim software per se becuse there is no clear definition of what software is. One "applies" for a patent for a new and useful machine, process, manufacture or composition of matter.]

At another point the article asserts:
"... software is just code, code is only math. Once you view software as useful math, an elaborate language, not like ordinary property, there is no reason to restrict others' use of it. Just like math (where nobody would claim property on an equation), software requires advanced knowledge to be adapted, improved, applied correctly."

[Note: The author does not understand physics. Software and code are not one and the same. Code is anything that at some point gets decoded or re-coded, for example Morse code is re-coded into alphabet letters. Software can come in many forms, not just source code. For example your passwords can be thought of as software. And yes Virginai, there are reasons to restrict.]

"Free software is not about killing incentives for programmers. It's about seeing code as knowledge which should not be hidden from the user."

[Note: The whole point of object oriented programming is to encapsulate and thus hide knowledge from users. Too much knowledge can be a dangerous thing.]

"Imagine purchasing a car whose hood you are forbidden to open. It does not matter whether you know how a car works – the point is that nobody will be able to check the engine. How can you trust your car, if no one is allowed to make sure that it's reliable, that it does not leak, that it's not harmful to the society and environment?"
"The idea is the same with software – except that code does much more than move cars. Software runs our computers, phones, TVs, media players and more, carrying information and our culture."

From another source:
"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

D'oh! Please share with your local town burglars the info of when you and family will be out of town for a prolonged vacation. Thank you Mr. Spock-like Know It all.

Friday, October 30, 2015

Alice Omelette Poured Generously Over Graham Eggshells

At the time that Graham v. Deere (1966) was decided, section 103(a) read as follows:

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter. "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."

Alright, said the Supremes to themselves.

We don't know much about biology, history or zoology. Don't know deep algebra, just that 1 plus 1 is two. But about the English language we know a thing or three. We know how to parse a sentence.

It says in this section 103(a) something about "having ordinary skill in the art".
Somebody has got to figure out what that ordinary skill is, what its level is, and they need to do so by presenting "evidence".

It says in this section 103(a) something about "differences" and about the subtractant being "the prior art".
Somebody has got to figure out what the prior art is, what is its scope and content, and again they need to do so by presenting factual "evidence".

It says in this section 103(a) something about "the time the invention was made".
Somebody has got to figure out what that time is. Clearly the ordinary guy could not know what comes after. We best be wary of hindsight and allow for secondary considerations.

The Supremes of the Graham v. Deere era walked on eggshells. Careful not to overstep what the text of the statute said.

Now let's compare that against what the Supremes of Alice v. CLS did ...

Wednesday, October 28, 2015

Dismantling America. So we can be "Great". Again. Like we were before we had patents.

Not long ago, it was turnstile news that the world waited with baited breath for the next great thing coming out of America's technology mill.

It wasn't always that way.

Back in the day of our Philandering Fathers, America was a 3rd world back in the hillbilly woods agricultural society.

It was we who waited with baited breath for the next great technological advance to trickle down to us as soon as the "Great" Britain magnanimously decided to so do.

Then our Tinkering Fathers (e.g. Ben Franklin, ...) had a stroke of some kind. Eureka. Aha. If we gave out patents to "our" tinkerers and inventors we wouldn't be waiting around for Great Britain.

Today. We have great thinkers who want to make America "Great" again by going back to the old ways. By doing away with patents. By rolling back the clock to the good ole boy days when we waited with baited breath for them instead of them for us.

Tuesday, October 27, 2015

The Myth and the Magic

"I think it, therefore it is." (... true, that is)

Descartes didn't say that.

However many a modern day magical thinker believes it.

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 group of people sitting
11 around a coffee shop in Silicon Valley could do this
12 over a weekend.

In other words:
The Myth of Basic Science
("The implications of this new way of seeing technology—as an autonomous, evolving entity that continues to progress whoever is in charge—are startling. People are pawns in a process. We ride rather than drive the innovation wave. Technology will find its inventors, rather than vice versa.")
Blogger's Note: So I need not have bothered writing this piece because inevitably someone else would have. And you need not have read this piece because inevitably someone else would have (read the other chap's piece). Pawns are expendable. Sit back, relax and just chew your cud.

Or is the rebuttal the correct point of view?
The “myth” of basic science?
("This is a profound misunderstanding of how basic science is translated into useful products. For instance, it is true that there were steam engines before the laws of thermodynamics were worked out, ... In turn, engineering improvements in the steam engine contributed to the understanding of thermodynamics during the 19th century. ... Basically, Ridley postulates the “myth” of basic science as a means of arguing that current patent policy is too stringent and protects monopoly")

Blogger's Note: So let's unilaterally disarm. Throw away our patent laws. Throw away our inventors and their cunning draftsmen lawyers. Sit back and wait for Them to inevitably invent. Piss in our pants when They arrive on our shores with their new inventions ... and then annihilate "Us" slackers. Good idea. Brilliant. Thank you Little Anthony and Clarence the Clown.

Is "innovation" inevitable?
Do patents "stifle" it?
Is the individual inventor irrelevant?
Another Edison or Bell would have surely come along?
Another Newton, Einstein, Darwin, Galileo was queued up and ready to go?

On whose shores?

Friday, October 23, 2015

Aw Shucks Judge Double Dashes Down the Rabbit Hole

One newspaper article describes him as an "aw shucks charm" kind of "normal, regular guy" who nonetheless has a "fierce legal mind" that makes him a "tremendous writer and a tremendous thinker."

Apparently his mantra is not to rush to judgment. "Our primary objective is not to get it fast. It's to get it right. If I have to sacrifice a little speed for care, that's what I'll do."

It is with that kind of razor sharp deliberateness and care that we find him racing down the rabbit hole once again in FairWarnings Part Deux

"FairWarning attempts to re-litigate the validity of the '500 patent and to demonstrate that "the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit." (Doc. 45 at 5)"


Dare you suggest that Clarence the Clown and Little Anthony fail to grasp technical subject matter?

It is a well known fact of "science" and even a "law" of Nature that any Mount Olympus whiz can ease on down that road to yonder coffee dispensary, pick out any java sipping geek, point to any "generic" computer, mumble any abstract concept, utter the magic words, "Apply it" and within weekend's time it is made so.

Alice Oral arguments:

7 JUSTICE KENEDY: Well, let me put it this
8 way. If you describe that to a second-year college
9 class in engineering and said here's - here's my idea,
10 now you go home and you program over this weekend, my
11 guess is - my guess is that that would be fairly easy
12 to program.

13 MR. PHILIPS: I don't disagree with it,
14 Justice -
15 JUSTICE KENEDY: So the fact that the
16 computer is involved, it - it seems to me, is necessary
17 to make it work. But the - but the innovative aspect
18 is certainly not in the creation of the program to make
19 that work. All you're talking about is - if I can use
20 the word - an "idea." ...
8 JUSTICE BREYER: Why is that less abstract?
9 I mean, imagine King Tut siting in front of the pyramid
10 where all his gold is stored, and he has the habit of
11 giving chits away. Good for the gold, which is given at
12 the end of the day. And he hires a man with an abacus,
13 and when the abacus keeping track seems that he's given
14 away more gold than he is in storage, he says, stop.
15 You see?
16 Or my mother, who used to look at my
17 checkbook, when she saw that, in fact, I had written
18 more checks than I had in the account, she would grab
19 it. Stop. You see?
20 So what is it here that's less abstract that
21 the computer says, stop?
22 MR. PHILIPS: It is -
23 JUSTICE BREYER: How is that less abstract
24 than King Tut, if we had the same thing with a grain
25 elevator, if we had the same thing with a reservoir of ...

1 (Laughter.)
2 JUSTICE KENNEDY: - is - is whether or not
3 you could have patented that system, idea, process,
4 method, without attaching a computer program.
5 MR. PHILIPS: You cannot, absolutely cannot
6 do that with this system, because it is so complex and
7 so many interrelated parts.
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 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. PHILIPS: You mean wrote the code?
14 JUSTICE KENNEDY: Yes, right.
15 MR. PHILIPS: Well, that's absolutely -
16 I'm certain that's true.
17 JUSTICE KENNEDY: Well, then - then -
18 MR. PHILIPS: But that's true of almost all
19 software.
20 JUSTICE KENNEDY: Then why is the computer
21 program necessary to make the patent valid?

Wednesday, October 21, 2015

Fair Warning: They Know Not What a Human Mind is Because They have One

"Know Thyself"
is what is advised
by some self reflective

Can one know oneself
merely by 'thinking'?

Many a self-absorbed court
believe it is so
and beyond questioning.

After all,
is not "Rocket Science"

If you have a "mind"
If you use it every day
Then surely you know how it works!


(FLA. Blog post on same here)

To be continued if thou willst it.

"In a strained comparison, FairWarning argues that the '500 patent "provides a solution to a technological problem, namely, identifying potential snooping and identity theft by authorized users." (Doc. 52 at 10) However, DDR Holdings is inapposite because the '500 patent is not "necessarily rooted in computer technology." FairWarning asserts that "analyzing audit log data is not like analyzing human behavior, as audit log data examines the electronic footprint or trail of activities that are executed in a computer environment." (Doc. 52 at 7) But, as Iatric states, the '500 patent "is but a modern spin" (Doc. 50 at 16) on reviewing activity to detect suspicious behavior, an activity that existed in the "pre-Internet world."[2]"

Saturday, October 17, 2015

Twilight Zone Make IT Go Away Lawyer Rebuffed by Reality Cognizant Judge

Remember that Twilight Zone episode where the little boy has the power to make real things and real people "Go Away" simply by wishing it to be so?

All the adults are scared to death of Little Anthony.

Modern times have their own Little Anthony except that he sits on the Supreme Court with Clarence the Clown.

At long last a brave but lowly District Judge has said "No" to Little Anthony and his minions.

No. Reality doesn't go away simply because you wish it away with your Twilight Zone powers (i.e animating Alice's White Rabbit).

"Plaintiff responds by arguing that the “summary [of the claim] must include the core features of the claim.” (Resp. at 5.) Plaintiff also argues that the “text of the patent claims refutes Defendants’ assertion [that the clai ms are directed to an abstract idea] because each claim includes key features that are ignored in Defendants’ summary.” (Id. at 6.) Further, Plaintiff argues that “[a] person reading Defendants’ summary would have no idea that the claimed inventions required a central broadcast server, associated data channels, or transmitting data to a remote computing device whether it is online or offline to a data channel.” (Id.)

The Court does not disagree that the patented inventions, at some level, contain an implementation of the abstract idea of “packaging and transmitting information.” However, every invention can be reduced to some form of an abstract idea.
See Alice, 134 S.Ct. at 2354 (“At some level, ‘all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.’ ”). The question before the Court, according to the Ineligible Concept Step of the Alice test, is not whether the Court is able reach into a patent and extract an abstract idea from which to determine patent-eligibility; such an exercise would render the Ineligible Concept Step a mere formality. Instead, the Court is directed to examine the Patents–in–Suit and to determine whether they are directed to an abstract idea. See Alice, 134 S.Ct. at 2355.
After considering the arguments and the evidence in the record, the Court finds that the Patents–in–Suit are not directed to an abstract idea.