An Open Response to the USPTO -- Physical Aspects of Mathematics

Sep 28, 2010, 20:02 (0 Talkback[s])

"The USPTO has issued a request for comments on their new interim guidance, Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos [PDF]. They invited comment by Monday, September 27, from the public on three questions in particular:

1. What are examples of claims that do not meet the machine-or-transformation test but nevertheless remain patent-eligible because they do not recite an abstract idea?

2. What are examples of claims that meet the machine-or-transformation test but nevertheless are not patent-eligible because they recite an abstract idea?

3. The decision in Bilski suggested that it might be possible to "defin[e] a narrower category or class of patent applications that claim to instruct how business should be conducted," such that the category itself would be unpatentable as "an attempt to patent abstract ideas." Bilski slip op. at 12. Do any such "categories" exist? If so, how does the category itself represent an "attempt to patent abstract ideas?"

"They ask in effect how to tell an abstract idea from an application of the idea. This article suggests answers to that question from the perspective of a computer professional."

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