It is a quote from Zen above.

I have been in the business for over 20 years. I hear the claim that there are numerous example of bad patents. In my experience, based on the evidence before me and an examiner I can only think of one patent I got issued where I did not think it was supported by the evidence.

I have seen several other patents, one I was working on and we let drop, that should not of been issued. Analyzing claims is hard work. People spend years learning to do this. For this reason I am very skeptical of people who make this claim. Most of the people making this claim are not skilled enough to make a qualified legal opinion. Several of the academic studies that attempted to show this (also done by those not skilled in the art) were clearly based on flawed methodologies.

To have a rational discussion of this you have to start with the proper definition of an invention. Note the question of who is the inventor is a separate question (novelty - nonobviousness). All human creations can be divided into those that have an objective result and those that have a subjective result. Objective means repeatable and independent of the observer just like in scientific experiments. All inventions should be eligible for patent protection - property rights in inventions.

I don't know who removed a point here. can you please explain what you mean by your statement?

db has a post on this on his blog. Not one of the Justices has a technical or scientific background. Most of their staff are are young lawyers who also cannot claim expertise in this area. To illustrate: the Supreme Court and the CAFC have disagreed over patent rulings, usually based on patent law precedent or technical assertions. The CAFC is made up of about half patent attys who in order to practice patent law must also have either a science or engineering background.

Yes, the code per se is not patentable (it is just copyrightable). It is only when the the code is used to wire the computer and it becomes a specific electronic circuit is that patentable.

Why do you say purely mechanical machines are not patentable?

Once you understand that software is just a way of wiring an electronic circuit most of the problems fall away. One other confusion is that in patent law we do not explain well known components. So we do not explain how to make a compiler for instance, if we are using a standard well known compiler.

High level software is converted by a compiler into assembly code or other lower level language. This is converted by computer into voltage levels, which set the states of various transistors. This means that you are wiring an electronic circuit.

You realize that anything done is software can be done in hardware - because it is done by hardware. The reason an electrical engineer decides to implement a solution in software or hardware (or the numerous other choices in between) has to do with a trade between speed versus flexibility.

If you just look at the history of computers, the whole point was to create a flexible way of wiring logic (digital) circuits.

"algorithms, software, and applied mathematics in engineering physics" How does it do this? By changing voltages that change the states of transistors and the voltages on capacitors - electronic circuit.

wow. That was spectacularly bad advice to you. It is frustrating that applications are published 18 months into the process allowing competitors to engineer around the invention, and allowing countries (China) to just steal the technology. I know db reads convoluted patents at times. He is kinda famous for his short applications. He once had a Fortune 100 client tell him to add more pages to the description. Descriptions are separate from claims however, and the determination of patent eligibility will rest on the claims. Claim construction is very rule specific. There is lots of statute out there telling a patent prosecutor how to construct them. Much like an equation....Some claims are considered independent and some claims are dependent, for example. Although confusing to you or I, it is not intended to obfuscate but to adhere to the laws regarding eligibility.

Swan did sue and win. Swan should have won. Regardless, Edison's invention was a significant improvement over Swan's. This is a case that shows why patents do NOT give you a MONOPOLY over your invention. It illustrates how this system ensures that everyone who contributed to the commercial version of the invention is entitled to compensation or credit.

Judge Newman also wrote in the CAFC ruling on Alice:
"Reliable application of legal principles underlies the economic incentive purpose of patent law, in turn implementing the benefits to the public of technology-based advances, and the benefits to the nation of industrial activity, employment, and economic growth. Today’s irresolution concerning section 101 affects not only this court and the trial courts, but also the PTO examiners and agency tribunals, and all who invent and invest in new technology. The uncertainty of administrative and judicial outcome and the high cost of resolution are a disincentive to both innovators and competitors."
The judges anticipated this would go to the Supreme Court and were nervous...

zen, I will agree that db argues strenuously for his opinion in areas which he claims expertise. Patent law is consistently and stealthily misinterpreted and misunderstood. Just as I would not argue with a pathologist over a cancer diagnosis, I understand his reaction to people who do not practice patent law making sweeping determinations as to what should or should not be a patent. "Obviousness" is a hotly debated method for determiniation and I think you are employing it in this case. However, even the jusdges did not test this case for obviousness. Rather, they broadened their interpretation of "abstract idea." Software was not even mentioned in the decision, furthering the confusion of the experts looking at the opinion.
You specifically wanted to discuss this case not broad categories of what should/should not be patentable. Dale had spent hours researching the Alice patent before meeting the inventor. He did not enter the case with any bias, save some previous bad Supreme Court rulings moving ever closer to anti-patent stances not based on technological or patent law expertise. It was one reason President Regan commissioned the CAFC in the first place-Judges lack of knowledge and understanding of the subject matters. Although not intended by President Reagan, the CAFC court is made up of only half patent attorneys with technical degrees. When the CAFC decision came out, the court was sharply divided with Justice Rader correctly pointing out in his dissenting opinion:
"[I]f all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents."
Those skilled in the art admit prior tests for eligibility are outdated withthe disruptive onset of the information age. Patent prosecutors were looking for strong guidance in these decisions for how to move forward. But both decisions lack substantive direction. IF those who write patent applications daily and deliver Patent opinions cannot know how to move forward with their clients, how is it you are so confident in this case? I think that is the source of ultimate frustration on db's part.

the only thing common on this post are those examples which have been misinterpreted and misunderstood. They are popular to cite in the media and on tech (anti-patent) sites. However, they are legitimate patents and were not well known or there would have been no need to desire the technology or steal it. Generally those who claim "obviousness," a bad way to test for patent eligibility btw, have not understood claim construction or what the invention really covers-only what the media or anti-patent interests describe the invention as. Patents take hours to examine-not a quick article read, and so I reject your examples, most of which have been vetted and upheld by experts as inventions.

db; Yes, the laser and fire both produce light as one result, but the laser is a 'unique device' and 'method' and 'process' when compared to existing devices and methods for producing light at the time of discovery, invention, and patent application. Though in fact the original laser didn't actually 'produce' light in that it required a light source (such as a flash bulb) which then entered the resonant cavity or oscillator of the laser element (the gain material with mirrored caps/ends) amplifying and bringing the light to polarity and temporal coherence before emitting it (actually escaping the partially translucent mirror end) as the maser did earlier with microwave frequencies.

As I understand Edison's first marketable light bulb patent, it was essentially Swan's British patented bulb with an improved carbon on bamboo filament permitting a reduced current (therefor an improvement on Swan's and granted in the US) over that of Swan's which required much larger wiring. Had Swan sued Edison, Swan likely would've won - thus the merger of the two into the Edison - Swan company again utilizing another improvement by Swan of a plasticized cellulose/carbon element.

I've added the above two paragraphs, not to blow wind up your skirt, but to illustrate two patentable examples - the first a unique device, method, and process and second, an improvement on an existing patented device. Though I totally agree that an invention of a different way to accomplish something is also patentable

How does one enforce their property rights? it is not efficient to spend all of one's time vigilent to the threat of looters. nor to hire individual enforcement mechanisms. Who is the ultimate arbitor in a dispute? the thought of devolving to individual city states or clans seems med-evil to me. It is the proper function of a government to enforce the property rights of its citizens allowing them time to be productive

The way claim construction works requires that elements of the invention be included. By law, they are not allowed to pick out each element and claim that it is known and therefore invalidates. They are supposed to only look at the combination as a whole. For example, in making a new smart phone, part of the claim construction would include the use of a micro-processor. You would not be allowed to say hey, this smart phone invention has a micro processor and we know all about those, they've been around forever. and phones have been around forever too! why is that smart phone patentable? This is basically the same argument we are having here. Even though the court is not supposed to separate out individual parts from the whole, in this case and another recent patent case, they are doing just that. and they are applying different patent law statutes to each part.
This is the reference to black magic. You cannot create something from nothing. All new inventions come from known elements. so if the court looks at individual elements of a process or method and tries to invalidate the result based on the fact an element was well-known, that would mean there would never be any new inventions. Their language implies this. They have already back-tracked on previous cases regarding this by simply responding "we didn't mean that." But their decisions have consequences. We know this. Think the Patriot Act. On a good day many parts of the law are used to protect citizens from terrorism. On a bad day or how the government would most broadly interpret their powers under the act-it is used against the citizens it was intended to protect. Simply saying that was not the intent of the law should make no one comfortable. There are thousands of software patents out there which were just invalidated by this ruling. In the end, this ruling will hurt the start-up/small inventor and strengthen the large corporation. The large corp was just given more incentive to infringe on patents which were weakened by this ruling. Over time it will stifle the invention process. Why go through the risky, time-consuming, expensive process of R&D if there is no guarantee you can secure a patent (property right ) to that labor?

khaling, I accept your definition so adequately described in your reply comment to me about 20 hr and 44 min ago:
'police will not only NOT show up to arrest the robbers but will charge you for the courtesy of looking around and determining-it wasn't your stuff in the first place.'

Coercion is simply the threat of the enforcement understanding that any enforcement action carries with it the ultimate force of government. Men with guns acting with the force of law and sovereign immunity.

Again, exactly and very well described.

to your last question, distinguishing between processes which have an objective vs. subjective result. Art itself is not patentable. Processes used to create art, are

Thanks for the references. They are very illustrative and answer some questions I've had in the past.

evw: exactly. Thanks for saying it better than I did.

I assure you I know quite a lot about computers from both education through graduate school and years of experience in computers, mathematics, engineering and physics. Why do you think software is a way of wiring an electronic circuit? Maybe you are just using non-standard terminology.

A good book for you to read is The Feynman Lectures on Computation, which explains both the physics and mathematics of computers. It does not require prior technical knowledge of these subjects and you would probably get a lot out of it. It shows how the states of a computer are represented and controlled, and how this is implemented in hardware with transistor circuits employing solid state physics.You would only need to read about half the book. His presentation is now decades old, but still captures the fundamentals.

I don't know what the specialties of their staff members are. I only raise this because there is more to it than the specialties of the Justices themselves. Have you looked into the backgrounds of the staff? For all we know the ignorance spreads beyond any particular Justice and the staff didn't know enough to consult anyone either.

My career has been in computers, including "how computers work" and algorithms, software, and applied mathematics in engineering physics. Why do you think software is a way of wiring an electronic circuit?

How does it violate the physical principles of the conservation laws and what does such theoretical knowledge have to do with patents?