tag:blogger.com,1999:blog-5574479.post6311595283344934518..comments2024-03-19T10:57:44.760+00:00Comments on The IPKat: Machine-or-transformation? Bilski court speaks!Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-5574479.post-29177462333214663272010-06-30T15:08:37.232+01:002010-06-30T15:08:37.232+01:00Anon writes that Flook/Diehr deliver "mixed m...Anon writes that Flook/Diehr deliver "mixed messages" but I thought that Flook (penned by Stevens?) survived unscathed and that puts the abstreact algorithm part of the prior art.<br /><br />No wonder US patent attorneys reacted with outrage, during that phase of the development of the EPO position on obviousness of pure business methods.<br /><br />Trouble for Stevens is that an algorithm that delivers a new and inventive solution to an objective technical problem deserves protection under the patent law.<br /><br />So, I now await the CAFC, interpreting Bilski at SCOTUS, to implement a "technical" test like that at the EPO. It might be unappetising to NIH-troubled Americans, but it's better in tune with GATT-TRIPS than "abstract", eh?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72126180926695533662010-06-29T23:25:19.468+01:002010-06-29T23:25:19.468+01:00I agree with MaxDrei that the real question is whe...I agree with MaxDrei that the real question is whether the "inventiveness" of an abstract idea can contribute to non-obviousness under 35 USC 103. (Common (layman's) sense would say "no".)<br /><br />I don't see how this could be dealt with under 101 without aggravating the inherent contradictions already present in Flook and Diehr.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-46191214147407321482010-06-29T15:24:48.911+01:002010-06-29T15:24:48.911+01:00"Hopefully it'll be Stevens' analysis..."Hopefully it'll be Stevens' analysis of the meaning of "process" in the Patent Act context that the lower courts take forward."<br /><br />I don't see how that is possible given that he was out voted 5-4. Stevens and 3 others took the view that business methods should be excluded. The opinion backed by the majority took the opposite view and has stated that processes can not be excluded on the basis that they are business methods and therefore that some business methods are allowable.<br /><br />MaxDrei- As I understand such issues shoudln't come in under 103 but possibly can under 101. The exsisting Supreme judgements Benson, Flook and Diehr give mixed (arguably contradictory) messages on claims which are abstract except for "insignificant post solution" features.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48755917380098125572010-06-29T14:49:35.499+01:002010-06-29T14:49:35.499+01:00Thanks for the clarification MTPT. I'd only l...Thanks for the clarification MTPT. I'd only looked quickly; now I look properly I see what's going on.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-73386576241667242482010-06-29T13:39:12.343+01:002010-06-29T13:39:12.343+01:00Haven't yead read any opinion yet but, being a...Haven't yead read any opinion yet but, being an EPO practitioner, I am keen to get reaction to my question below, on the interaction of patent-eligibility and non-obviousness, in the USA, from now on.<br /><br />Suppose the abstract idea is a very inventive abstract idea. Suppose you get through 101 by satisfying the MoT test. Can you then rely upon the non-obviousness of your inventive new abstract idea, as such, to defeat any PTO objection to issue that has been formulated under 35 USC 103?<br /><br />Or will the USPTO now behave like the EPO, and argue that the non-obviousness of the abstract idea, as such, will not overcome an obviousness objection?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-23944305012232799912010-06-29T10:20:55.327+01:002010-06-29T10:20:55.327+01:00@Anonymous(2): It's the latter.
The first pa...@Anonymous(2): It's the latter. <br /><br />The first paragraph of the Syllabus/headnote is not the court's judgement; it's the rehearsal of the history of the case prior to the Supreme Court. <br /><br />The language you quote ("Concludiong that this "machine-or-transformation test" is the sold test...") is part of the summary of the CAFC decision.<br /><br />The Syllabus on the Court's decision doesn't start until the top of page 2.Matthew Taylorhttps://www.blogger.com/profile/12421362491742820756noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19355200499915240172010-06-29T09:30:38.874+01:002010-06-29T09:30:38.874+01:00Completely agree on Stevens - there's a wonder...Completely agree on Stevens - there's a wonderful line at the end of his demolition of Kennedy's reasoning:<br /><br />"The Court essentially asserts its conclusion...This mode of analysis (or lack thereof) may have led to the correct outcome in this case, but it also means that the Court's musings on this issue stand for very little."<br /><br />Hopefully it'll be Stevens' analysis of the meaning of "process" in the Patent Act context that the lower courts take forward.Matthew Taylorhttps://www.blogger.com/profile/12421362491742820756noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66708547477759940722010-06-29T08:23:08.431+01:002010-06-29T08:23:08.431+01:00From the quoted headnote:
"Concluding that t...From the quoted headnote:<br /><br />"Concluding that this “machine-or-transformation test” is the sole test for determining patent eligibility"<br /><br />From the quoted concluding comments of Justice Kennedy:<br /><br />"In disapproving an exclusive machine-or-transformation test..."<br /><br />So which is it? Or have I got the wrong end of one of the sticks?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-1290831117351390242010-06-28T21:55:32.388+01:002010-06-28T21:55:32.388+01:00Rather a beautiful judgement of Stevens J. He seem...Rather a beautiful judgement of Stevens J. He seems to shoot golden arrows of understanding through the unhelpful muddle of the Kennedy opinion.<br /><br />KerryKerry Tomlinsonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-36932695099057043132010-06-28T17:37:48.813+01:002010-06-28T17:37:48.813+01:00Amidst all the Bilski hype, one would miss the ant...Amidst all the Bilski hype, one would miss the anticlimax here in the EC: <br /><br />The Monsanto case has been settled in the Netherlands. Monsanto has -strategically after the AG's opinion?- withdrawn its claims, thus making it highly unlikely that the CJEU will still issue a ruling on the Biotech directive anytime soon (settlement reported on EPLaw Blog).Anonymousnoreply@blogger.com