Saturday, December 6, 2008

In re Bilski / Part 2 / The fundamental fundamentals of "fundamental principles"

The In re Bilski majority notes: "Specifically, the [Supreme] Court has held that a claim is not a patent-eligible "process" if it claims [1] "laws of nature, [2] natural phenomena, [or] [3] abstract ideas." ...Such fundamental principles [footnote 5] are "part of the storehouse of knowledge of all men . . . free to all men and reserved exclusively to none." ... ("A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.") --quoting Le Roy v. Tatham, 55 U.S. 156 (1852)
One must ask what the urgent need was for the Bilski majority to invent new terminology ("fundamental principle") for covering up and hiding the original triad of:
[1] "laws of nature",
[2] "natural phenomena", [and]
[3] "abstract ideas"?

Shouldn't these original test factors be applied to the actual words of Bilski's claims to see if the claims "embrace" and thus preclude a purely abstract idea, or a natural phenomenon, or a "law of nature" (whatever that is)?

What alchemy mandated recasting of the legal question as "The true issue before us then is whether Applicants are seeking to claim a fundamental principle (such as an abstract idea) or a mental process"?

Could it be perhaps, that focus on the original triad would expose their ridiculousness and fail to provide the desired result, namely, that no matter what the words of Bilski's claims say, the majority could use the newly minted hyper-test ("fundamental principles") to bar the inventors from getting a patent?

And if indeed a "principle" is a fundamental truth, then is not a "fundamental principle" defined as a fundamental fundamental truth?

What makes something a "truth", another a "fundamental truth" and the last a "fundamental fundamental truth"?

And how far does this fundamentalism go? Can we have an Nth power fundamental truth?

These are enticing questions for those who want to dig down to the axiomatic basic root of the bottomless abyss and discover what lies beneath its bottom line. ... (to be continued)

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