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02 October 05.
Joe: Hi. I'd like to leave my cat here at the pet shelter. Bonus: business methodsJudge Rich, the guy who invented the concept of software patents in his 1994 In re Alappat ruling, did have one half-decent reason why he knew what Congress was thinking when it wrote the Patent Act of 1952: he's the guy who drafted it. The `nonobviousness' requirement is basically his idea.He's a creative guy. In his 1998 State Street ruling, he also brought patents on business methods into existence. In fact, he's sort of bitchy about it: "[When the lower court made the ruling we overturn here,] the court relied on the judicially-created, so-called 'business method' exception to statutory subject matter. We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the 'business method' exception has merely represented the application of some general, but no longer applicable legal principle..." So who are the idiot judges to use such a principle? Who is he making fun of when he expresses his disdain for this "ill-conceived", "judicially-created" exception? Why, himself, because he excludes prior rulings which would have informed the software patent issue in In re Alappat using the business method exception. His ruling depended on saying that the court has consistently accepted certain off-the-wall patents, but there were two that were disembodied algorithms but were rejected; to keep his argument consistent, he brushed those two rulings aside by stating that their rejection was based not on the construction of the claims or what-have-you, but on the business method exception: "Maucorps dealt with a business methodology for deciding how salesmen should best handle respective customers and Meyer involved a 'system' for aiding a neurologist in diagnosing patients. Clearly, neither of the alleged 'inventions' in those cases falls within any Section 101 category." (31 USPQ2d 1555, 33 F.3d 1541, or just search for it) How Judge Rich went from putting disdainful scare quotes around "invention" to putting scare quotes around "business method" in four short years is left for the reader to ponder. Speaking of scare quotesOne of the favorite lines from the patenting lit of late is that "Anything under the sun that is made by man" is patentable. This comes from the Diamond v Chakrabarty ruling, which ushered in gene patents. Again, it cites the Congress of 1952 as stating this.OK, so let's ask the Congress of 1952, notably, Senate Report No. 1979, 82d Cong., 2d Sess. (1952), which is what Diamond v Chakrabarty was citing: "A person may have 'invented' a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled." From which we conclude that the Congress of 1952 is OK with patents on genes, software, and business methods. A close reading of any of the rulings which ushered in these new systems reveals a great deal of sophistry which basically boils down to the judge stating "I would really like this new subject matter to be patentable. There is no subject matter exception. There never has been a subject matter exception. There never will be a subject matter exception." Typically, the ruling which changes everything is preceded by a few dozen rulings which say that the new subject matter shouldn't be patentable until the Congress comes out and explicitly states that patenting this new field really will make for a better economy. Then the new ruling comes along and says that no, the Congress of 1952 is very much OK with this new technology, even if they couldn't conceive of it even in science fiction. Clearly, this sort of argument requires a really, really, close reading of the pre-tech statutes. I'm uncomfortable that patent law is based on tea-leaf reading by the Judiciary instead of a direct statement from Congress.
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