MOT is Apple Sauce

Outgoing Supreme Court Justice Stevens failed to garner a majority in Bilski v. Kappos. (Thank goodness.)

Today's decision was instead authored by a Kennedy-led majority. The majority clung to a mere 16 pages of veiled revelation so as to not lay bare their foggy apprehension about what lay of land lies under the swampy murk of the patent world.

As usual, lay folk will want to know: What does it (the Bilski v. Kappos decision) mean?

Here are some semi-cryptic answers:
1. MOT has been whipped into apple sauce --still good for the gander, but not gravy for the patent-killing goose
2. The concrete sidewalk on State Street is demolished
3. Opaqueness is the new transparency
4. "Invention" is to be divined through the eyes of the beholding judge/ examiner and not in accordance with claims read as a whole
5. As for Bilski himself and poor Yorick, alas we knew them well

Of course, to "make apple sauce" of something means to mash it up, to run it through the blender so that the original is no longer recognizable.
Bilski aficionados know that "MOT" stands for the Machine-Or-Transformation test, This was the eligibility test put forth by the lower US appeal court, the Federal Circuit. (See In re Bilski (Oct. 30, 2008)) as being the "exclusive" and only test for eligibility of a "process" claim under section 101.

The US Supreme Court has today mashed up the Fed. Cir.'s MOT test such that it is no longer usable for knocking down another's patent or application.

Also, Mott's happens to be a brand name of an apple sauce.

To say that MOT is no longer gravy for the patent-killing goose means that although MOT has been de-fanged as a test for knocking down someone's business/ software patent under 35 USC 101, the other edge of the MOT double edged sword remains sharp and wield-able. Patent owners can still use MOT to validate their patent claims under section 101.

This is good news for those seeking patents for methods of doing business and methods using machines that obey "software" commands.

Opaqueness is the new transparency.
What does that mean?
The US Supreme Court today "affirmed" the Fed. Circuit decision.
But in actuality, they reversed it.
Welcome to the new Mis-Information Age where words mean the opposite of what they say. Alice of the Wonderland Mirror would be right proud.

Key Foggy Bottom Quotes (KFB's)

KFB #1:

Petitioners seek to patent both the concept of hedging risk and the application of that concept to energy markets. Under Benson, Flook, and Diehr, however, these are not patentable processes but attempts to patent abstract ideas. Claims 1 and 4 explain the basic concept of hedging and reduce that concept to a mathematical formula. This is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook.

KFB #2:

Petitioners’ remaining claims ... then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation. They add even less to the underlying abstract principle than the invention held patent ineligible in Flook. Pp. 12–15.

... Under Construction ...

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)

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)

The Planning Primate's Primer

Some comments from Resource Insights:

--The analogy I like to use here is to pretend that you've jumped off a 100-story building. Falling past the first 99 floors causes no harm at all, but you'd obviously be wrong to assume that the [bottom] is going to be the same. 8:02 AM

Step Back said...

Calling ourselves planning animals is somewhat naive and self congratulatory.

The human brain is full models. Models that try to emulate the external world.

If I consider myself an "empathic" person it is probably because I have a model of you, of what you are like, running inside my head. I can step into that model and pretend that I am feeling what you are feeling. Then I have a sense of "empathy" for your situation.

I have other models running in my head that try to emulate the world. What is it like? What makes it go round and tick the way it does?

Perhaps my world model includes an Invisible Hand and a Market that mysteriously comes around to make everything right in the end. Perhaps my internally-kept model includes a section for Peak Oil, population overshoot, Global warming; or none of the above. It's different for every human being.

With a model, I can race it forward in time and see what happens. That's called predictive modeling. I can also test the validity of my predictive model by waiting to see what actually happens. For more insight on predictive models, see Kalman Filters.

4:55 AM

Step Back said...

So just a little more on predictive modeling and validation.

Say I am running a Cornucopian model inside my head. In other words, the Market always provides and "technology" (whatever that is) is forever progressing forward.

So say I'm not a technical person but I know how to step into a technology store, like a Circuit City or a Radio Shack or what have you.

One day I step in and they are selling vacuum tube color TV's. Wow this technology is cool! The next decade, I step into the store and "they" have created transistorized TV's with remote controls ... and computers. Skip forward to modern day and they are showcasing the iPhone.

All this validates my Cornucopian internal model. Floor 33, and so far not only so good, but it seems to be getting better! What are those Gloom & Doom others talking about? I think I'm going to continue modeling them as being lunatics. My everyday validation tests show they are lunatics. No need to waste time listening to their rants. My internal models prove themselves to be always correct.

5:07 AM Step Back said... P.S. A validating find for my BS model about validation is here.
Excerpt:
Over the past month, I have been to the following stores: Public
Target (TGT)
Home Depot (HD)
Lowes (LOW)
Best Buy (BBY)
Circuit City (CC) ...
5:17 AM

stepback bookmarks 101

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Lemmings Ledge ...... Patently-Un .......... Notes

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