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Michael Risch
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Consider SugarSync, which I think is better than either of them. The problem with the iCloud setup is that you lose selective sharing with your other computers and others. With sugarsync, I share pics folders with my wife's machine and my phones, "my documents" - which sits in place, not in a separate folder - with my work machine and my tablet, my class notes and powerpoints with my admin who prints them out, and my data sets with co-authors. And there are different filetypes in each of those directories. Tying "pages" documents together seems to really limit folks who do hard core work like converting file types, etc.
Nice post, though I guess I take a bit of issue with the notion that we've just given up with your cite to Life After Bilski. By "no one" we meant observers. In that article, we attempted to define what might make an idea too abstract to patent, even if some might disagree with it. I look forward to the remaining posts.
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Would it kill you to watch the whole thing before calling me a parasite? At least then you would have full information. Also, I wish I were a parasite...at least then I would make some money.
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RTFP. If you are as smart as you say, then you know what that means. I explain what I call a transformation and what I don't. However, to say that courts never limit transformations is ridiculous. A quote from Prometheus: "The first of these transformations, however, is irrele­vant. As we have pointed out, the “administering” step simply helps to pick out the group of individuals who are likely interested in applying the law of nature. ... And the second step could be satisfied without trans­forming the blood, should science develop a totally differ­ent system for determining metabolite levels that did not involve such a transformation." So, one transformation is irrelevant, and the other is not really a transformation because maybe in the future it can be done without a transformation. Sounds like two limitations on transformation to me. I think I need to add this as a footnote in the paper. As for the handholding, etc., I figure being cited by the Supreme Court is vindication enough. I can live without your approval.
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It is broad - in theory. In practice, it is narrow. I address this and the "insignificant" part you mention in the paper.
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Ouch. Apparently you didn't read the paper, because I discuss this point at length. If transformation were as broad as you say, then things would be great, but courts have limited transformation to be much more restrictive than this. So, yes, I was a bit more careful in thinking about what is and is not a transformation than you are being here. Sorry about that.
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Proof that I'm neutral. NWPA says I don't focus on structure enough, and Ned says I focus on structure too much. I won't take a position here, including on the "numbers in/numbers out" issue. I've written about that elsewhere, so you can download my other articles if you are interested. My point, which this comment illustrates, is that the issues are older than most might have thought.
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A good point. Turns out I didn't see any such patents, but my thought was a method of bending the iron - not the tempering. I address this issue a few times in the paper. One example is a tempered pitchfork. Another is using rosin to coat tin on a pipe (for that one, I consulted a chemist). In the end, I figured that even if I'm wrong about half of them (which I doubt), it's still 20%, which is still pretty high.
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He does not want copyright for functionality. Nor does any copyright attorney I know - because sometimes you're the defendant. And the law has never protected functionality. You are right that this increases the importance of software patents. Like I said, show me the quote in the article in context. I would be surprised if there is something to take issue with.
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You kept writing "structure" as if it is the structure of the machine. I didn't realize you meant structure of the program. For copyright, you WANT to argue that the structure of the program is unrelated to its function. If you argue that the structure, sequence and organization are tied to functionality, you LOSE copyright protection. This is exactly what's going to happen in Oracle v. Google. Oracle says the API structure is creative and not required for functionality. However, the only way to make a cleanroom version of Java is to copy the API structure, and Oracle is going to have its copyrightability in the API limited. When you have time, if you point me to the article, I will be happy to look at it and say that I'm getting it wrong if indeed I am.
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The heart of the matter that is important to you. It's 3 paragraphs in this 50 page paper that is not directly about software patents. And the "minor" point I meant was your assertion that this was all just a fraud because I didn't drop a footnote to say that some people disagree with me (which I did, but based on your feedback, I will do more clearly now)
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Well, a response on the merits, which I am happy to engage. I am not Lemley, and we disagree on some things (many, in fact). That said, I've never known Mark to say that structure is unrelated to function. What he has said, and that I agree with, is that software PATENT CLAIMS are often separated from the PARTICULAR structure. And no, adding "with a memory and cpu" is not particular structure - all computers have this - it is not the limited structure on which the solution was invented. What happens is that someone figures out an inventive way to solve a problem with a particular structure, but then claims that solution for ALL structures, even ones where the solution is not inventive. I invent a really cool way to calculate finger position on a touch panel with hardware that made it difficult. Great - and a patent should issue. But then I claim all touching of a screen to calculate coordinates, which is not so inventive when better screens come out. The initial software is 100% tied to the structure, but the claim is not tied to the structure. Whether this creates a problem or not is for another day. Note that this does not mean I think we should get rid of software patents. The entire point of my article, which you seem to be missing, is that courts were WRONG to limit methods only to a particular machine, and that our current practices of ignoring post-solution activity are based on a flawed importation of British law. I would have thought you agreed with that point. As for the loom: 1. I don't care if people want to use the fact that it existed to their benefit one way or the other - this is a paper about history, and the history existed. People are free to argue how the loom is the same or different from modern patents, as you have done. 2. Even so, I'm surprised that you take the view that I pitched this as anti-software. I think you are projecting. The way I read it, I am pointing out that the debate is old (and not limited to information processing - a fair point that I will add to the final), but that it seems ODD that we might allow a patent on a new loom design, but not on the same design when implemented in punchcards: "it is unclear why nonobvious 'hardwired' variations in loom design should be patentable, while nonobvious 'software' variations [in] loom punchcard design should not be when the resulting product is the same." Seems to me that this is decidedly pro-software, and arguing the same point you are - that the loom "software" is tied to the loom "hardware" and that there doesn't seem to be a principled reason to exclude it from patentability. I don't know what assumptions you think I'm making that lead people to think the cards are ineligible. The facts of the loom are what they are, and if you want to argue that adding a memory and a cpu for information processing is different, then fine with me.
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Huh? First, the card reader is patentable. What about the cards? That's the issue. The point of my discussion is that you can easily patent a loom with a new design, but the idea of patenting the design itself on cards was not so clear. And in fact, I take no position on the issue - only note the struggle, and I've written 100 other places that software should be patentable. I just don't get the vitriol.
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Your ability to fixate on the most minor of points, especially in an article where I generally agree with your view, is amazing. First, I don't claim that the Jacquard loom is a general purpose computer. I claim that it uses a primitive form of software. I then cite that many credit Babbage with the first such computer. That I recognize the dispute is evident in my blog post above: "though I know some think that this is not really software." Second, even if people dispute whether the loom is information processing, the general discussion is accurate regardless of what you call it. Third, you miss the entire point of the discussion. It is not whether the structure of the loom is patentable. It's whether a set of punchcards with a new design is patentable. Indeed, unlike software, which can reside in the machine to make a new machine, the punchcards never become part of the new machine. I wish the world was so simple and black and white as you seem to perceive it. In your view, structure is everything. Then I go to Groklaw and they tell me, albeit far less rudely, that structure is nothing. God forbid it wind up somewhere in the middle.
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Ned - you are just wrong on that. I cite work of others that shows that Graham and others tend to over-rely on Jefferson and his influence at the time. I'm not saying that courts should decide or not - just that it's a stretch to say that Jefferson controlled. Indeed, Jefferson found the 1793 elimination of examination (which moved it to the courts ex post) to be a huge mistake, and examination was reinstituted in 1836.
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I think that one was lost in the fire :)
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Well, I read the claim again - no therapeutic step - ouch. I think that leads to a practical utility problem (and a novelty problem, and an obviousness problem).
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Didn't I just say that? There's no indication that the Prometheus claims were known in the prior art. If they were, then the claim is not novel, or it's obvious (I'll note that they end with an adjustment of dosage - a process - and not just thinking about it). That's why I don't infringe when I read lab reports, but my doctor might if the treatment is adjusted based on information.
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If that's true, then it's not novel, or it's obvious, or it lacks any utility associated with the novelty (like your example).
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Right, yours was "thought" and "policy", also not in the statute. Yes, facts can be protected. The particular way to build a machine is clearly patentable but also clearly a fact. Do I think that pure "information" can be patentable? Not for the most part, but I don't think you get there by adding restrictions to patentable subject matter. I've written several articles on this if you are interested in my viewpoint.
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For the record, this view is 100% contradictory to numerous Federal Circuit cases... Yes, and it is 100% in line with other cases that go the other way. Inherency doctrine is a mess. See, e.g. Seaborg (element unknown but inherent, patent granted). The point is not whether a composition's properties are understood, but whether the public implicitly gets the benefit of those properties (e.g. the Claritin metabolite case).
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OK, so if it is only thinking about modulating the dose, then there's no practical utility because the method doesn't actually do anything... You are adding an assumption here: practicing the prior art. That's a novelty question - there's no implication in the hypo that finger examination is in the prior art - after all, it cost millions to discover...
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Maybe or maybe not. I follow the public benefit view of inherency. If people noticed finger color changes (even if informally), then it's not novel. If they didn't then it is novel. Still probably obvious. Either way, it's not a subject matter question.
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There's all sorts of patents that individuals can infringe without knowing it - why should modulating dosage be any different?
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Why not? People throw in all sorts of other stuff that's not in the statute that's based on public policy, including the banning of laws of nature in the first place. Just look at MMs response below...
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