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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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October 24, 2012

CAFC, Abstraction, Mayo, and New Cases

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Posted by Alan Wexelblat

Hold onto your seats, folks, the courts are once again going to dive into the arena of "abstract" as it applies to patenting, particularly of processes and computer programs. This is undoubtedly necessary, because in its Mayo ruling the Supreme Court appears to have badly confused a couple sections of 35 U.S.C., the governing law on criteria for patentability.

EFF's Deeplinks by Julie Samels last week highlighted two cases that are going before the Federal Circuit that relate to this issue: Alice and Ultramercial.

In CLS Bank v. Alice Corp the Court will have to decide the relationship between the implementation of a process in a computer (program) and the abstractness of that process. In Ultramercial v. Hulu the issue again is whether taking a process that is abstract and putting it into a computer program somehow makes it non-abstract.

In both cases the EFF is arguing that encoding an abstract process into a computer program doesn't automatically make it non-abstract. This sounds good on the face of it, but it has two major problems - neither of which is really the EFF's fault. Problem one is the question of what is "abstract." The common-sense notion of abstract is a fine one, but in order to rule on a matter of law what's needed is either a definition in the law (missing) or a definition in a precedential court case (missing and/or confused). In order for the Federal Circuit to be able to make reasonable sense of these cases, we're going to need a workable, legally binding agreement as to what "abstract" means in the sense of patents on processes.

The second problem is one I referred to when I criticized the EFF's patent-reform efforts this past summer: focusing on software is misguided. I continue to believe that a fundamental principle underlying all of computer science is that anything that can be done in a program (software) can be done in a machine (hardware). Therefore, the critique of these cases cannot be simply that "turning them into a program does not make them non-abstract." You must logically also say that "turning them into a machine does not make them non-abstract."

And if you say that creating a machine that follows a process is not patentable then you have a serious problem that loops back around to our first point: how is this not making something non-abstract? Isn't a machine the Platonic ideal of a non-abstract thing? And how are we to differentiate one set of steps (process) taken by a machine from another set of steps taken by a different machine in such a way that we could say one machine was performing an abstract idea and one was not?

It's this sort of reasoning that leads people like Greg Aharonian (of PATNEWS) to argue that the entire notion of abstract is undefinable - he would say "nonsense" - and thus should be removed from the laws entirely. Unfortunately, the CAFC can't rewrite the law and Congress is extremely unlikely to do so, which means we may be stuck trying to untangle this knot for some time to come. Paging Alexander the Great!

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