EFF details post-Bilski confusion on what is too "abstract" to patent

https://www.eff.org/deeplinks/2011/09/trio-post-bilski-cases-fail-clearly-define

by grellas • 15 years ago

25 6 15 years ago

brlewis• 15 years ago

Despite the confusing parts of Bilski, is it at least now clear that In re. Alappat and State Street are no longer considered valid precedent?

6ren• 15 years ago

> On its face, this all sounds well and good, until one considers the patent’s own depiction of its allegedly not abstract invention:

What point are they making? Surely it can't be that the diagram is abstract... Diagrams are by nature abstract.

IIRC, the key to CyberSource Corp. v. Retail Decisions, Inc. (about credit card risk assessment over the internet) was in the precise wording of the claims - they didn't use the word "internet", even though that was how the invention was described. The thing is, the description in a patent is just "one embodiment" of the invention, and it is up to the claims to be clear about the actual scope of the invention. Claim too much and you're dead.

That's why most inventions have a series of dependent claims of decreasing scope - if the court finds one is too broad, the next one might be OK. A ridiculously broad first claim does no harm - provided you confine it later. From reading several patents, I've formed the impression that the first claim is often used as a sort of framework "here's the basic idea", and its wording is more to do with making it convenient to hang the other claims on than intrinsic merit.

cduan2• 15 years ago

> A ridiculously broad first claim does no harm

That might be true other than the fact that each claim gives rise to an individual legal right. A ridiculously broad first claim can be asserted as in a cease-and-desist, it can be the basis for a lawsuit, and it can cost those who are threatened thousands of dollars to invalidate, if it even is invalidated. So they actually do cause a lot of harm.

Vivtek• 15 years ago

I think the point they're making is that the "diagram of the invention" doesn't actually show the invention, but rather ... the Internet on which it runs. Qualifies as abstract in my book.

cduan2• 15 years ago

So it seems that the "abstract idea" under Bilski has turned into "does it look complicated enough."

In Research Techs. Corp. v. Microsoft Corp., from last year, the court said that a method of halftoning was not abstract, because it involved a process of comparing pixels. In CyberSource, the court explained that comparing pixels was not abstract because "the method could not, as a practical matter, be performed entirely in a human mind."

Similarly, in the Ultramercial case, the court says that the method is not abstract because "Many of these steps are likely to require intricate and complex computer programming," and "certain of these steps clearly require specific application to the Internet."

These words, "as a practical matter," "intricate and complex computer programming," and "specific application to the Internet," are what throw me for a loop. As a practical matter, I can compare four numbers on a piece of paper, but I can't download a million numbers off of the Internet and compare them. So comparing four numbers on a piece of paper is an abstract idea, but comparing a million numbers on the Internet is not?

Hyena• 15 years ago

Sometimes I get the feeling that SCOTUS thinks they have said something meaningful when they haven't. It would be a decent study to see if judges are just re-applying their priors but, of necessity, using the language of Bilski.

That would be better than statements about conclusions, since it would help build a clear set of criteria the Court can apply to itself when they want their ruling to have a predictable effect.

EFF details post-Bilski confusion on what is too "abstract" to patent

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