Friday, November 28, 2008

In re Bilski / Part 1 / Trick or Treachery?

Halloween is about candy,
wrapped in foil or other disguise.

Bite into it carefully,
Lest you get a nasty surprise.

In re Bilski contains cover up upon cover up. One masking layer is piled up atop the other. Peeling this onion can be like trying to unravel a Gordian knot.

Small wonder then isn't it, that on the Eve of Halloween an en banc panel at the Federal Circuit bubbled up from their cauldron of toil and verbiage, a mixed soup of masks, cover ups, exuberant irrationality and fundamentalistic principelia? The end goal, of course, was to deny patent rights to inventors of a method for promoting the general welfare. But like any trick and treachery, this had to be done with great delicacy.

You wouldn't know it from the majority opinion, but the inventors' method sought to smooth the transfer of energy commodities between sellers and buyers. Real results affecting a real world problem. There is nothing "abstract" about your heating oil man not delivering the goods on a cold wintry morning because the markets suffered a pricing hiccup. Yet the Feds were able to apply their linguistic electro-distorting lens machine to the situation and convert reality into abstrationism. Like candy wrapped in multiple foils, they packaged their goodies under many guises including appeal to authority and "fundamental principles". We'll get to the second aspect in another session.

Judge Newman's dissent in In Re Bilski (Fed. Cir. 10/30/2008) speaks for itself.

The intent here is to look behind the Halloween costumes and masks at the assumptions made and the things left unsaid in In re Bilski. This is a monumental task and like an onion, may have to be peeled along many layers.

What assumptions you ask?
Well, firstly we note that that Supreme Court decisions are generally due respect and deference. But not all Supreme Court decisions (Dred Scott cough cough) qualify. The majority in In re Bilski takes it on blind faith that Gottschalk v.Benson is a flawless decision worthy of praise and mimicry. Standardized methods of statute construction and careful looking at all the actual words in 35 USC 101, in 273(a)(3) and in 100 are dispensed with. (In another session we will substitute into 101 the definition provided for "process" by 100(b) and 273(a). Note for the mean time that if 100(b) is "unhelpful" in defining "process" as the majority contends, then obviously 100(a) is equally "unhelpful" in defining "invention". Maybe the whole of Title 35 should be scrapped in that case?)

So let's go back and look more carefully at Claim 8 of Benson:

8. The method of converting signals from binary coded decimal form into binary which comprises the steps of:
(1) storing the binary coded decimal signals in a reentrant shift register,
(2) shifting the signals to the right by at least three places, until there is a binary `1' in the second position of said register,
(3) masking out said binary `1' in said second position of said register,
(4) adding a binary `1' to the first position of said register,
(5) shifting the signals to the left by two positions,
(6) adding a `1' to said first position, and
(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary `1' in the second position of said register.

Do you notice something odd in Claim 8 of Benson?

That's right, it is tied to a "particular" apparatus, namely, a reenetrant shift register.

And yes it involves the transformation of the particular type of register from one state to another. If only the inventors had been less forthcoming, more obtuse, and called their claim a method for operating a shift register, who would have seen that the machine-implemented signal processing method surprisingly also happens to convert a binary coded decimal signal into a binary coded one?

However, the goal of some courts is to come to the conclusion they came to in the first place, regardless of what the facts might be.

As the Wicked Witch of the West said in the Wizard of Oz, "These things must be done delicately". And so the Bilski majority conjures up a mind twisting concoction called "fundamental principles". ... more to come at a later date (perhaps)

(Original Comments are here)

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