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(USA Today)   Supreme Court limits the ability to gain software patents on abstract ideas. Looks like your clever and original plan to patent patenting is over   (usatoday.com) divider line 40
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1919 clicks; posted to Geek » on 19 Jun 2014 at 2:29 PM (23 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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ZAZ [TotalFark]
2014-06-19 11:33:58 AM  
The Supreme Court can reverse any Federal Circuit decision. It can not reverse every Federal Circuit decision. I predict software patents will survive.
 
2014-06-19 11:55:54 AM  

ZAZ: The Supreme Court can reverse any Federal Circuit decision. It can not reverse every Federal Circuit decision. I predict software patents will survive.


Sure. This was the right decision, but for the wrong reason. It highlights why Thomas shouldn't be allowed to write opinions.

Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.

The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.
 
2014-06-19 12:29:19 PM  

Theaetetus: ZAZ: The Supreme Court can reverse any Federal Circuit decision. It can not reverse every Federal Circuit decision. I predict software patents will survive.

Sure. This was the right decision, but for the wrong reason. It highlights why Thomas shouldn't be allowed to write opinions.

Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.

The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.


I think they threw him this as a bone - thought he could do the least damage with it. The IP associates at my firm are not having a good morning.

Right now all I care about is Hobby Lobby. Hubby and I have some bets going on (split, author, etc) and I'd love to get out of six months of litter box cleaning.
 
vpb [TotalFark]
2014-06-19 12:52:26 PM  
Well, that's it for Apple.
 
2014-06-19 02:04:53 PM  
Wait, you mean Apple will have to actually patent stuff that is actually relevant and innovative?  Welp, they're screwed.
 
2014-06-19 02:37:35 PM  

Grand_Moff_Joseph: Wait, you mean Apple will have to actually patent stuff that is actually relevant and innovative?  Welp, they're screwed.


ROUND CORNERS!
 
2014-06-19 03:08:07 PM  
white background photography?
 
2014-06-19 03:10:08 PM  

Grand_Moff_Joseph: Wait, you mean Apple will have to actually patent stuff that is actually relevant and innovative?  Welp, they're screwed.


Nah, they decided to play nice with Google and that will keep them propped up for a while more.
 
2014-06-19 03:10:43 PM  

onzmadi: white background photography?


Don't piss off Amazon, they'll stop selling your shiat.
 
2014-06-19 03:12:10 PM  

moonscatter: Theaetetus: ZAZ: The Supreme Court can reverse any Federal Circuit decision. It can not reverse every Federal Circuit decision. I predict software patents will survive.

Sure. This was the right decision, but for the wrong reason. It highlights why Thomas shouldn't be allowed to write opinions.

Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.

The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.

I think they threw him this as a bone - thought he could do the least damage with it. The IP associates at my firm are not having a good morning.

Right now all I care about is Hobby Lobby. Hubby and I have some bets going on (split, author, etc) and I'd love to get out of six months of litter box cleaning.


Get pregnant and you can get out of that for nine months!
 
2014-06-19 03:37:30 PM  
Ha! I'm patenting limiting the ability to gain software patents on abstract ideas.

Checkmate Supremes!
 
2014-06-19 03:44:05 PM  
I have no idea what they are saying. What does this actually change?
 
2014-06-19 03:47:19 PM  

Intrepid00: I have no idea what they are saying. What does this actually change?


I'm hoping it means that we can finally throw out all the stupid patents like the online shopping cart.
 
2014-06-19 03:49:48 PM  
So 2 apple rips in 13 posts but an apple joke headline was redlit.Good job retards
 
2014-06-19 03:55:12 PM  

Intrepid00: I have no idea what they are saying. What does this actually change?


Nothing, honestly. Basically, some really broad and vague business method patents from the late 90s may be tossed with citations to this decision, but they probably were already invalid as being obvious in view of existing prior art.

The bigger question is what about patents that happen to executed by computers, but claim something that's new and nonobvious? In all likelihood, those are still valid. It's not clear how something could be a new and nonobvious (and therefore patentable under §§102-103) abstract idea (and therefore not patentable under §101) in Justice Thomas' eyes.

That's not how the patent act is supposed to work, mind you... §§101-103 are three independent and separate requirements, but he's basically equated 101 to 102/103, which is stupid.
 
2014-06-19 03:56:20 PM  

Leader O'Cola: So 2 apple rips in 13 posts but an apple joke headline was redlit.Good job retards


As I am not a totalfarker, I can't say for certain, but if the apple joke headline was as funny as the jokes in here , then subby for said headline probably deserved to get redlit and a cockpunch.
 
2014-06-19 03:56:27 PM  

Driedsponge: Intrepid00: I have no idea what they are saying. What does this actually change?

I'm hoping it means that we can finally throw out all the stupid patents like the online shopping cart.


A shopping cart is a bit like a rectangle with rounded corners.

You'd never have seen one if it weren't for a genius working for an IT firm having a flash of inspiration.

Da Vinci and Einstein contributed nothing compared with them.
 
2014-06-19 04:02:54 PM  
For those that are having trouble with the ruling here's the idea as I understand it.

Putting an idea in software form is not patentable unless the idea was patentable without the use of software. IE, slapping "software" on something does not make it eligible for patent.
 
2014-06-19 04:03:02 PM  

Theaetetus: Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.


I think what Thomas was focusing on is seen in his use of the word "fundamental".  I agree that it's confusing when he adds the "long prevalent" which makes it seem like he's talking about prior art.  In fact, I think he's focused on the attempt by the claimant to try to patent what he sees as a fundamental concept, intermediated settlement.
 
2014-06-19 04:07:14 PM  

Galloping Galoshes: I agree that it's confusing when he adds the "long prevalent" which makes it seem like he's talking about prior art.  In fact, I think he's focused on the attempt by the claimant to try to patent what he sees as a fundamental concept, intermediated settlement.


I agree with myself.  Read in context, this is not unclear at all.
 
2014-06-19 04:08:04 PM  

ReverendJynxed: onzmadi: white background photography?

Don't piss off Amazon, they'll stop selling your shiat.


Or Google, since they're pulling similar tactics with Youtube and independent music labels.
 
2014-06-19 04:09:46 PM  

Theaetetus: The bigger question is what about patents that happen to executed by computers, but claim something that's new and nonobvious? In all likelihood, those are still valid. It's not clear how something could be a new and nonobvious (and therefore patentable under §§102-103) abstract idea (and therefore not patentable under §101) in Justice Thomas' eyes


I think what you have to do now is just take every claim that says something to the effect of "a general purpose computer configured to . . . " and read out that limitation.  Where the claim doesn't explicitly say "a general purpose computer" but everyone knows its a computer implemented method, read that out too.  If whatever left is raw idea, then the whole thing fails section 101.  I know, that's not how 101 works, but now it is.
 
2014-06-19 04:12:23 PM  
I'm taking out a patent on the idea of patenting patents.
 
2014-06-19 04:17:40 PM  

SpdrJay: I'm taking out a patent on the idea of patenting patents.


OK, state your claim.  What's your nonobvious improvement?
 
2014-06-19 04:21:20 PM  

Nuuu: I think what you have to do now is just take every claim that says something to the effect of "a general purpose computer configured to . . . " and read out that limitation.  Where the claim doesn't explicitly say "a general purpose computer" but everyone knows its a computer implemented method, read that out too.  If whatever left is raw idea, then the whole thing fails section 101.


What's a "raw idea"? And don't just say "it's an abstract idea". ;)

I know, that's not how 101 works, but now it is.

I think that's actually closer to how 101 is supposed to work, but that what we have now is "the function performed by the computer at each step of the process is '[p]urely conventional.'... all of these computer functions are 'well-understood, routine, conventional activit[ites]" previously known to the industry."
In other words, take your claim and, if every step is a routine processing step that's been done many times before, then it's not new "abstract".
 
2014-06-19 04:22:39 PM  

Galloping Galoshes: Theaetetus: Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.

I think what Thomas was focusing on is seen in his use of the word "fundamental".  I agree that it's confusing when he adds the "long prevalent" which makes it seem like he's talking about prior art.  In fact, I think he's focused on the attempt by the claimant to try to patent what he sees as a fundamental concept, intermediated settlement.


But, his definition of "fundamental" is "been done before". That's literally the opposite of an "abstract idea".
 
2014-06-19 04:25:18 PM  

Galloping Galoshes: SpdrJay: I'm taking out a patent on the idea of patenting patents.

OK, state your claim.  What's your nonobvious improvement?


If it were obvious, you'd already know.

/I can haz patent now?
 
2014-06-19 04:47:49 PM  

Theaetetus: The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.


I dunno.  Even if you can't patent the concept of teleportation, you can still patent the teleporter that is needed to make it work.  If somebody then invents a completely different way to teleport somebody using totally different technology than you did, I don't see why you should be able to jump in and claim you had a patent on all teleportation-related matters.
 
2014-06-19 04:49:42 PM  

Geotpf: Theaetetus: The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.

I dunno.  Even if you can't patent the concept of teleportation, you can still patent the teleporter that is needed to make it work.  If somebody then invents a completely different way to teleport somebody using totally different technology than you did, I don't see why you should be able to jump in and claim you had a patent on all teleportation-related matters.


Yes, that's how it's supposed to work. However, in Thomas' test, your first claim to the concept of teleportation wouldn't be "abstract", because it hadn't been done before. Therefore, you  could jump in and claim you have a patent on all teleportation-related matters.
 
2014-06-19 05:09:13 PM  

Theaetetus: ZAZ: The Supreme Court can reverse any Federal Circuit decision. It can not reverse every Federal Circuit decision. I predict software patents will survive.

Sure. This was the right decision, but for the wrong reason. It highlights why Thomas shouldn't be allowed to write opinions.

Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.

The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.


Except in this case it was an abstract idea they were trying to patent. They essentially patented "escrow, but done on a computer" without even saying how specifically it would be performed. You could come up with a novel idea but cannot patent it in the abstract. For example, a device that turns human waste into diamonds couldn't be patented if you claimed it covered all methods of turning waste into diamonds. If you invented a device or process that used high pressure in a certain sequence to convert the poop to diamonds, you could patent it. However, if someone else came along and figured out how to apply certain chemicals to reach the same end product, your patent can't touch that. I'm sure you know all that, but I'm just arguing the "abstract" notion rather than the "novel" notion is the relevant point here. I suppose the company could have come up with a specific and novel method for doing escrow on a computer, but more than likely another company could easily get around the patent, making such a patent nearly worthless. It's better to try to patent the general approach and scare everyone away with the threat of a long legal battle.

As far as Thomas being the one who did this, Sotomayor also addressed the patent as being abstract in her concurrence.
 
2014-06-19 05:30:19 PM  

zipdog: Except in this case it was an abstract idea they were trying to patent.


What's an "abstract idea"? Can you define it better than Thomas?

They essentially patented "escrow, but done on a computer" without even saying how specifically it would be performed.

No, they listed 4 specific steps to perform the method. They're enumerated in footnote 2.

You could come up with a novel idea but cannot patent it in the abstract. For example, a device that turns human waste into diamonds couldn't be patented if you claimed it covered all methods of turning waste into diamonds.

Why not? As noted, Thomas said that this was unpatentable because all of the steps were conventional and routine in the art. If you included a step of "generating diamonds from human waste," that wouldn't be anything conventional or routine in the art. Accordingly, under Thomas' test, that would not be "abstract".

If you invented a device or process that used high pressure in a certain sequence to convert the poop to diamonds, you could patent it. However, if someone else came along and figured out how to apply certain chemicals to reach the same end product, your patent can't touch that. I'm sure you know all that, but I'm just arguing the "abstract" notion rather than the "novel" notion is the relevant point here.

You're reiterating that abstractness is separate from novelty, and it should be, but where in this decision do you see any hint of that?

I suppose the company could have come up with a specific and novel method for doing escrow on a computer, but more than likely another company could easily get around the patent, making such a patent nearly worthless. It's better to try to patent the general approach and scare everyone away with the threat of a long legal battle.

Yeah, that's the real failure here... They had a significant amount of detail in the specification, but got greedy and tried to go too broad. But, that "too broad" bit means that what they ended up claiming had been done before - i.e. it was not new, rather than that it was "abstract".

We still don't really have a definition for what an "abstract idea" is.

As far as Thomas being the one who did this, Sotomayor also addressed the patent as being abstract in her concurrence.

Not really... She just signed on, without any actual reasoning, but said that she would also have held that all business methods are ineligible.
 
2014-06-19 05:41:09 PM  

Theaetetus: What's a "raw idea"? And don't just say "it's an abstract idea". ;)


It's an abstract idea.  Ha.  That's not satisfying, but I don't think that's the specific question Thomas ever intended to answer here.

What I think he's getting at is that, if you accept as a given that you have an abstract idea, can you make it patentable by piping it through conventional technology?  A math equation doesn't become patentable if I claim it as, "a system comprising a pen and paper configured for solving an equation; . . ."  And yet for years we had given a pass to claims which did essentially the same thing with a general purpose computer.  What he means when he talks about a computer being "conventional" is that we're now acknowledging the reality that even if your claim recites a computer, or a computer readable media, you're not really claiming the computer.  In other words:

"Stating an abstract idea "while adding the words 'apply it' is not enough for patent eligibility. Nor is limiting the use of an abstract idea 'to a particular technological environment. Stating an abstract idea while adding the words "apply it with a computer" simply combines those two steps, with the same deficient result. Thus, if a patent's recitation of a computer amounts to a mere instruction to "implement an abstract idea on a computer," that addition cannot impart patent eligibility."
 
2014-06-19 05:47:53 PM  

ecmoRandomNumbers: Grand_Moff_Joseph: Wait, you mean Apple will have to actually patent stuff that is actually relevant and innovative?  Welp, they're screwed.

ROUND CORNERS!



On screws? MADNESS!
 
2014-06-19 05:54:25 PM  

Nuuu: Theaetetus: What's a "raw idea"? And don't just say "it's an abstract idea". ;)

It's an abstract idea.  Ha.  That's not satisfying, but I don't think that's the specific question Thomas ever intended to answer here.


Mind you, that's the only question on everyone's minds, from the Examiners to the CAFC to the practitioners.

What I think he's getting at is that, if you accept as a given that you have an abstract idea, can you make it patentable by piping it through conventional technology? A math equation doesn't become patentable if I claim it as, "a system comprising a pen and paper configured for solving an equation; . . ."  And yet for years we had given a pass to claims which did essentially the same thing with a general purpose computer.

Yes and no... For years, we were giving a pass to claims which were tied to a machine and therefore were not "abstract ideas". In other words, we weren't accepting as a given that they were abstract.

What he means when he talks about a computer being "conventional" is that we're now acknowledging the reality that even if your claim recites a computer, or a computer readable media, you're not really claiming the computer.  In other words:
"Stating an abstract idea "while adding the words 'apply it' is not enough for patent eligibility. Nor is limiting the use of an abstract idea 'to a particular technological environment. Stating an abstract idea while adding the words "apply it with a computer" simply combines those two steps, with the same deficient result. Thus, if a patent's recitation of a computer amounts to a mere instruction to "implement an abstract idea on a computer," that addition cannot impart patent eligibility."


No, those are still talking about method claims... He disposes of the system and CRM claims separately in part C, saying that "the method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea... Because petitioner's system and media claims add nothing of substance to the underlying abstract idea, we hold that they too are patent ineligible under §101."
In other words, taking your quote above, flip it on its head and say that "a computer, applying [abstract idea]" is not a patent-eligible machine.

... but it still all rests on the premise that the idea is "abstract", something which Thomas defines as... oh, wait, he doesn't: "we need not labor to delimit the precise contours of the 'abstract ideas' category in this case."
In other words, "I'll know it when I see it." Are we going to end up with a Miller test for patents, determining whether something is abstract based on whether the average person, applying local industry standards, looking at the work in its entirety, determines that it appeals to the trollish interest?
 
2014-06-19 06:31:28 PM  

Theaetetus: Mind you, that's the only question on everyone's minds, from the Examiners to the CAFC to the practitioners.


The Supreme Court has long made it clear they are under no obligation to answer the questions people want to see answered, even if those questions are the very reason the case merits Supreme Court consideration.

There's lots to consider with respect to the rest of your post, but for the sake of brevity:

... but it still all rests on the premise that the idea is "abstract", something which Thomas defines as... oh, wait, he doesn't: "we need not labor to delimit the precise contours of the 'abstract ideas' category in this case."
In other words, "I'll know it when I see it." Are we going to end up with a Miller test for patents, determining whether something is abstract based on whether the average person, applying local industry standards, looking at the work in its entirety, determines that it appeals to the trollish interest?


Yes.  This is exactly what the Supreme Court is doing.  In Octane Fitness, the Supreme Court took the Federal Circuit's bright line test for fee shifting and threw it away, saying, "you know it when you see it."   In Nautilus, the SCOTUS took the Federal Circuit's clear (albeit strict) test for indefiniteness and threw it away, and turned it into a reasonableness standard.  In just the last 6 months, the Supremes have pretty clearly told us, we're shifting to a reasonable person standard in pretty much everything patent.

Honestly, I don't think that's a bad thing.  One of the biggest problems I have with the courts now is that district judges don't know how to interpret the patent act. It's too specialized. They don't know what "insolubly ambiguous" means.  They don't use that kind of language or those kinds of standards in any other cases.  They know a reasonable person standard though.  They apply that every day.
 
2014-06-19 06:58:25 PM  

Nuuu: In just the last 6 months, the Supremes have pretty clearly told us, we're shifting to a reasonable person standard in pretty much everything patent.

Honestly, I don't think that's a bad thing.  One of the biggest problems I have with the courts now is that district judges don't know how to interpret the patent act. It's too specialized. They don't know what "insolubly ambiguous" means.  They don't use that kind of language or those kinds of standards in any other cases.  They know a reasonable person standard though.  They apply that every day.


I disagree... A reasonableness standard is fine where a judgement will be made once, but any time it's going to be revisited, there's a not-unreasonable chance that the line of what a "reasonable" person thinks shifts slightly. It removes definiteness and predictability, which is a bad thing from a law & economics perspective.

Maybe it would make more sense if we had a cheap registration-only system, with the understanding that any patent will be later judged for validity by a "reasonable" judge during litigation, but the entire point of an examination system is that there's some presumption of validity and, therefore, some predictability with regard to an issued patent.

I'd much rather see them move 101 to where it should be - a super low threshold (e.g. "anything under the sun that is made by man"), or even a test applied  after considering the patent under 102/103/112. 101 shouldn't be the escape hatch for when a patent violates one of those three later statutes, but proving it is too hard.
 
2014-06-19 10:46:34 PM  

Geotpf: Theaetetus: The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.

I dunno.  Even if you can't patent the concept of teleportation, you can still patent the teleporter that is needed to make it work.  If somebody then invents a completely different way to teleport somebody using totally different technology than you did, I don't see why you should be able to jump in and claim you had a patent on all teleportation-related matters.


On the teleportation idea being patentable, you would still need to meet Section 112 enablement provisions, which I don't think without describing at least an embodiment that would allow one of ordinary skill in the art to make and use the claimed invention.
 
2014-06-19 11:43:49 PM  

Theaetetus: ZAZ: The Supreme Court can reverse any Federal Circuit decision. It can not reverse every Federal Circuit decision. I predict software patents will survive.

Sure. This was the right decision, but for the wrong reason. It highlights why Thomas shouldn't be allowed to write opinions.

Specifically:
On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.  Like the risk hedging in Bilski, the concept of intermediated settlement is "'a fundamental economic practice long prevalent in our system of commerce.'"... Thus, intermediated settlement, like hedging, is an "abstract idea" beyond the scope of §101."

No, you dope, that means it's not a  novel idea. It's old as shiat, and should be rejected on  that ground, §102 or §103. But, because the defendant was lazy and didn't find any good prior art, and because SCOTUS can't do its own prior art searches, they'll wave their hands and say it's abstract.

The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.


Two posts in before the Klan show up.
 
2014-06-20 02:11:43 AM  
Nice that Justice Thomas actually said something...
 
2014-06-20 09:46:11 AM  

sdd2000: Geotpf: Theaetetus: The problem with conflating §101 and §102/§103 is that an idea that is absolutely new and nonobvious - "a method of teleportation" - may still be an abstract idea, and therefore should be ineligible, even if it's not a "long prevalent" practice, or is a "'well-understood, routine, conventional activit[y]' previously known to the industry". Thomas' test wouldn't apply to such a claim, though.

I dunno.  Even if you can't patent the concept of teleportation, you can still patent the teleporter that is needed to make it work.  If somebody then invents a completely different way to teleport somebody using totally different technology than you did, I don't see why you should be able to jump in and claim you had a patent on all teleportation-related matters.

On the teleportation idea being patentable, you would still need to meet Section 112 enablement provisions, which I don't think without describing at least an embodiment that would allow one of ordinary skill in the art to make and use the claimed invention.


Never said the teleportation idea was patentable for that reason. I was simply providing an example of an idea that is "absolutely new and nonobvious". Feel free to insert your own invention there. Point stands regarding Thomas' test and an "abstract" idea that is entirely new.
 
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