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Re: OT: How I learned to stop worrying and love software patents

Michael K. Edwards wrote:
> I see your "weasel-words" and raise you "horse-pucky".  You are
> impugning the intelligence and integrity of a whole class of dedicated
> public servants, whose actions are subject to more public scrutiny
> that any other branch of government, on pure hearsay.  Tell me what
> cases you would have decided differently and why -- taking into
> account the actual constraints of statutory language and stare decisis
> -- and then we can talk about where the error lies on the spectrum
> from ignorance to corruption.

Hmm.  Sticking to patents for the time being, let's note that no court
bothered to actually test whether the patent or copyright system falls
within the Constitutional power to "promote the Progress of Science and
the Useful Arts".  Given this, Diamond v. Chakrabarty is wrongly
decided; it rules that the Congressional intent to allow "anything under
the sun that is made by man" to be patentable subject matter is correct,
and furthermore that it is the principle by which questions of
patentable subject matter should be interpreted.  But that's a issue of
major legal philosophy.

Well, here's a nice simple one for you.

Diamond v. Diehr was wrongly decided; it overturned Parker v. Flook for
no particularly good reason, and didn't even have the decency to admit it.

"Respondents' claims must be considered as a whole, it being
inappropriate to dissect the claims into old and new elements and then
to ignore the presence of the old elements in the analysis."

This might have been avoided had the following actually been true: "In
this case, it may later be determined that the respondents' process is
not deserving of patent protection because it fails to satisfy the
statutory conditions of novelty under 102 or nonobviousness under 103";
however, footnote 33 of the dissent makes clear that this was not the case.

The patent consisted of combining a number of preexisting devices ---
including the preexisting temperature sensors -- in a way which was not
just obvious, but pretty much unavoidable -- everything in the industry
points to it like a laser.  Given the description of the problem, *I*
would have come up with it, and I don't know the first thing about the

The rejection of the Flook method of claim analysis actually rejected
precedents dating back to 1854, as noted by Stevens in the dissent.

Stevens's dissenting opinion is spot-on.  As usual for his later work.

AT&T v. Excel was decided wrongly, of course.

This court, unlike previous ones, didn't bother to look up the meaning
of the terms "formula", "algorithm", or "equation", which can only be
described as ignorance.  But that's a small matter.

'Thus, the Alappat inquiry simply requires an examination of the
contested claims to see if the claimed subject matter as a whole is a
disembodied mathematical concept representing nothing more than a "law
of nature" or an "abstract idea," or if the mathematical concept has
been reduced to some practical application rendering it "useful."'

Yep, this is perfectly parallel to arguments allowing patentable
artwork.  I invent a unique piece of artwork, but if I render it
"useful", it's not a "law of nature" or an "abstract idea".

"In Alappat , we held that more than an abstract idea was claimed
because the claimed invention as a whole was directed toward forming a
specific machine that produced the useful, concrete, and tangible result
of a smooth waveform display."

Yep, my invention as a whole produces the useful, concrete, and tangible
result of a pretty picture on a screen.

This is the bottom of the slippery slope, as someone wrote in Spectrum.

Of course, the broad patentable subject matter wouldn't be nearly as
serious a problem if the requirement of non-obviousness/non-triviality
had any teeth.  But it doesn't.

In Re Sang Su Lee, Teleflex v. KSR and the entire line of cases which
demand specific suggestions in a particular written reference to
determine obviousness are wrongly decided.  (And they aren't compelled
by the Supreme Court precedents, either.)  I actually think this line of
cases has done much more serious damage to the patent system than
anything else -- it's the primary reason for the substantial drop in
patent quality.  Patent examiners know that if they reject a patent for
obviousness without demonstrating exactly why it's obvious with
voluminous written references, they will be overturned.  It's very hard
to prove something "obvious" now, and very very easy to get it declared

Your choice whether this is incompetence or corruption, but it's
definitely one or the other.

The number of patents overturned on obviousness grounds has dropped from
the historical 30-40% to nearly nothing -- and it's not because fewer
are being filed.  :-P

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