KSR v. Teleflex (RIP U.S. Patent system) --First Thoughts

The second from last paragraph in the Supreme Court (of Jesters) ruling of KSR v. Teleflex (4/30/2007) caught this fool's eye:

["]We["] build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of ["]our["] shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from [ever] higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose.

It ties in nicely with what some refer to as The Religion of Perpetual Progress. Simply put, the fundamentalist believers in this religion use their "common sense" to conclude that "progress" is everlasting and guaranteed to continue in perpetuity while exponentially accelerating towards The Technological Singularity. Regretably, there are only handfuls of people outside the walls of the Supreme Court of Jesters who are aware of dark clouds gathering and threatening the very existence and continuance of the human race let alone perpetuation of the notion that, like diamonds, "Progress" is Forever. The only thing that can be said for the legal geniuses who sit on our Supremist of courts is: Forgive them, they know not what they do.

You can see the exuberent ignorance in their boastful congratulations to themselves. They brag about how "We" build and "We" create. They crow about how we use "instinct" and "inference" to raise our divine selves to ever higher and more glorious plateaus of technological achievement. The sad fact though, is that these Jesters of the Highest Court do not build anything except self aggrandizing words. You can see in their tones that they have not a clue about how the inventing process proceeds. They are so far removed from the trenches that they float on clouds of "palpable reality". Lucky for them, they are not alone. Wiley Coyote hangs there too.

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.

Failure to Call a Witness for the Defense

Imagine yourself sitting in a courtroom, watching a murder trial.

The Prosecutor calls up a forensic "expert" to examine the blood trail, the collections of carpet fibers and to offer an expert opinion on how obvious it is that the Defendant did it. With that damning testimony in place, the Prosecution rests.

Now the Judge calls upon defense counsel. "You may call your first witness."

"We have no witnesses to call," the lawyer confesses. "We believe that overwhelming evidence and arguments are already in place for us to easily win the case. The Defense rests your Honor."

You rub your eyes. What? No witnesses? No testimony on behalf of the accused? Boy, this poor bastard is going to fry. What kind of self-proclaimed lawyer fails to mount a defense?

On very rare occasions the answer might be, a very clever one. However, in most cases, the lawyer would be a fool to not call up an expert of his own to counter what the other side's alleged expert found to be "obvious".

Time to de-suspend your not too suspended disbelief. This after all is a patent blog. So "obviously" we are not going to be talking about murder trials. But how about appeals in front of the USPTO's BOPAI? How often does the defense fail to call up an expert witness in rebuttal against what the PTO's "expert" (a.k.a the Examiner) found to be "obvious"? Answer: All too often.

Here is a case in point. The BOPAI rules as follows.

For the foregoing reasons and those stated in the Answer, we determine that the Examiner has established a prima facie case of obviousness in view of the reference evidence. Appellant has argued that unexpected results have been demonstrated. Therefore, we begin anew and consider the [totality of the record] evidence for and against obviousness. See In re Oetiker, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). We do not find Appellant’s "evidence" persuasive for the following reasons. Expected beneficial results are evidence of obviousness, just as unexpected beneficial results are evidence of unobviousness. See In re Skoll, 187 USPQ 481, 484 (CCPA 1975); In re Skoner, 186 USPQ 80, 82 (CCPA 1975). Here [we find that the] Gleave [reference] teaches that improved results will occur by substituting the VAC thickener for a conventional PMM thickener (see factual finding (7) listed above). Additionally, Appellant’s "evidence" of nonobviousness that is not commensurate in scope with its claims cannot overcome the rejection of those claims. See In re Boesch, 205 USPQ 215, 219 (CCPA 1980) ... [rest of 103 affirmance is here.]

Now you might say to yourself, this is an aberration, not the norm. Actually, I took a quick sampling of several 103 affirmance cases decided in early April 2007 and found the same pattern repeated again and again. Look also here and here and here and here.

What is "software"? (Part II)

Suppose you had a wooden toy; one made of a "hard" wood.

Suppose you carved hardened grooves down a set of wooden ramps and you let a ball roll down the path defined by those hardened grooves.

This contraption is a "machine" of sorts. It has a moving part, the ball. It has a useful purpose: entertainment and education about the laws of physics.

Assuming there is no prior art, few would question whether such a "machine" and its "method" of use are patentable subject matter under 35 USC 101.

It should be "obvious" where I'm next going with this.

We are going to make the path that the ball follows less fixed, less hard. For example we can put a number of spring-closed trap door holes at spots along the upper and middle ramps. We can let the child use a set of strings connected to the trap doors (the monostable unlatching means) to determine ahead of time or dynamically in real time which trap doors pop open and which remain closed at least until after the rolling ball has passed that position.

The contraption is still a "machine", albeit a slightly more complex one. The ball still follows the laws of physics and moves towards the point of least energy. However, this time the path is defined in a "soft" way depending on how our innocent child pulls the strings.

What we have now is a tangible machine in combination with a pattern of dynamically changing or fixed energy states. The energy states are those of the monostable unlatching means, the spring-closed trap doors.

Consider next a machine whose moving balls are constituted by electrons, whose hardwood grooves are constituted by fixed wirings, and whose spring loaded trap doors are constituted by latch driven AND gates. What's the difference?

What is "software"?

The word "software" appears in the phrase "software patents".

Unless you've been living under a large boulder, you probably know that things known as "software patents" are a source of great contention.

Some people hate "software patents" with a passion while others come to the defense of these hypothetical monsters with equal vigor.

Before tackling the topic of "software patents" per se, one must first come to grips with the definition of "software" itself.
What is software?

Like the proverbial blind men circling the elephant, everyone seems to have a personal encounter with "software" and an explanation that satisfies, well at least their own personal curiosity.

A lay person may explain it this way:

"Well I went into the store and asked the fella where they keep their wordprocessing software. He pointed me to the aisle and I bought the box. Then I stuck this disc thing into my computer, and to my great satisfaction, my home computer became a sophisticated typing machine. That's software for you. It comes in a box. You buy it. You put it in your computer. It makes you happy.

From the Supreme minds of the Supreme Court of the land of the USA come these observations on "software":

JUSTICE GINSBURG: ... as I understand it, that what you call the object code appears in the -- in the computer that it's -- that is what is sent, along with the master disk, and the object code is the critical component, according to AT&T. In fact, wasn't that the first question that you raised, whether digital software code, an intangible sequence of 1's and 0's may be considered a component of a patent, patented invention? ... JUSTICE STEVENS: Well, I'm a little confused, ... I thought it was the software which was arguably the component, not any physical manifestation. ... MR. OLSON: ... Three decades of patent jurisprudence have authoritatively recognized software to be a physical and structural component of patented machines. ... MR. OLSON: ... people use the word "software" in two different ways. One of which, they use it as the intangible series of 1's and 0's. We submit that the correct way to understand the word "software" is the physical manifestation of that what is called source code, which is made into object code, which is made into machine readable code. ... JUSTICE SOUTER: In other words, the disk plus the -- plus the coded instructions. ... JUSTICE STEVENS: Your time is up, but I want to ask you one yes or no question. In your view is software patentable? MR. JOSEFFER: Standing alone in and of itself, no. JUSTICE STEVENS: Thank you.

There is more in the comments as well in the next post above.

First In the Hearts of his Inventor Countrymen

March 7, 2007
Testimony by W. Gates, III:
B. Rewarding innovation "In addition to investing in innovation, we must also reward innovators. This means giving inventors the ability to obtain intellectual property protection for their innovations, and to enforce these rights in the marketplace. America is fortunate that our leaders recognize the importance of intellectual property rights and the need for these rights to be respected, both at home and abroad. I know I join many other Americans in thanking this Congress and this Administration for their tireless efforts to promote intellectual property protection. In this regard, I would briefly note Microsoft’s support for current efforts in Congress to reform the U.S. patent system to meet the needs of the 21st century. Microsoft and other technology companies are working closely with Chairman Leahy and Senator Hatch on the Senate Judiciary Committee, and with the leadership of the House Judiciary Committee, to advance legislation on needed reforms. Although I will not delve into the details here, the reforms supported by Microsoft and many others will improve patent quality, reduce excessive litigation, and promote international patent harmonization – reforms that are vital if America is to retain its pre-eminence in technology innovation." Full text is here. Video is here.

Swift Tech Boat Tricks

Larry Ebert beat me to the punch on this Dirty Tech Troll Trot. There is dirty pool and there is truly troublesome playing of dirty pool. The Dirty Tech guys have crossed the line. Study their opening paragraph for rhetorical technique rather than substance:

A reader sent in a defense of patent trolls, written by (surprise, surprise) an IP lawyer. He trots out a number of different points which not only conflict with each other, but don't make very much sense. He flat out says that "Far from stifling innovation, [patent] trolls foster it," though he fails to actually back up that statement. He starts out by denying that patent trolls exist, because there's no real definition for them, which seems like an odd way to go about defending them. Later on, he even tries to claim that critics are doing a lot more harm to innovation by using the phrase patent trolls, because it's such a negative term -- and it's such a shame that public perception is against these poor trolls, because it makes it more difficult for them to settle lawsuits and get the hundreds of millions they deserver for, you know, not actually bringing anything to market.

This is a multi-layered school yard bully attack. They can't win on substance. So they go for name calling. Step back for a moment and realize that trolls don't exist. Trolls are yet another Grimms Fairy Tale fabrication just as are the Evil Eyed Talking Tech Dolls (of Chucky's Seed fame) and the Flying Monkeys from the Wizard of Oz. The Dirty Tech doll guys are using something known as the "ad hominem" attack. It's quite simple. Very effective. Try to make fun of the person and get everyone worried they might be next. If you fall for their swift boat bullying attack, it is only because you are a cowardly lion with a straw filled head. You should know better. Despite their repeated insistance, the fabled troll from under Billy the Bully Goat's bridge really does not exist. And if you don't get a patent first before trying to bring something to market, there is nothing to stop the Greed-is-Good Goliaths from snatching it out of your cradle. The Dirt Talking Tech guys are with Goliath. Who's side are you on kimosabee? Think about it.