The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate s... more The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate structural support for a means-plus-function element in a software patent claim under § 112(f). A recent proposal by Mark Lemley fully endorses this proposition and seeks its broader application. The concept of an algorithm, however, is too slippery to serve as the basis for such a rule. In this Article, I argue that this overreliance on the algorithm concept originated in a revisionist gloss on the Federal Circuit\u27s 1994 Alappat decision. Informed by a closer reading of what Alappat actually has to say about claim construction under § 112(f), I propose a more stable concrete causation standard that is not only applicable to all technologies, but also well-aligned with the reforms in the software field intended by Lemley\u27s proposal
With the passage and implementation of the “first-to-file ” provisions of the America Invents Act... more With the passage and implementation of the “first-to-file ” provisions of the America Invents Act of 2011, the U.S. patent system must rely more than ever before on patent documents for its own ontological commitments concerning the existence of claimed kinds of useful objects and processes. This Article provides a comprehensive description of the previously unrecognized function of the patent document in incurring and securing warrants to these ontological commitments, and the respective roles of legal doctrines and practices in the patent system’s ontological project. Among other contributions, the resulting metaphysical account serves to reconcile competing interpretations of the written description requirement that have emerged from the Federal Circuit’s recent jurisprudence, and to explain why the patent system is willing and able to examine, grant and enforce claims reciting theoretical entities. While this Article is entirely descriptive, it concludes by identifying promising...
In recent years, the U.S. mathematical community has been directing unprecedented attention to th... more In recent years, the U.S. mathematical community has been directing unprecedented attention to the problem of partisan gerrymandering, aided by computational advances and spurred by litigation challenging the spate of extreme partisan redistricting that followed the 2010 census. As North Carolina scholars who have been involved in the landmark Rucho v. Common Cause litigation, we have written this Article with the threefold aim of explaining how the expert analysis of North Carolina's congressional map was performed, how it was used to substantiate the plaintiffs' claims at trial and on remand, and crucially, how it may serve to address the justiciability concerns that have long attended the Supreme Court's partisan gerrymandering jurisprudence and have represented the legal context for our work.
Recent computer science research on the reidentification of individuals from anonymized data has ... more Recent computer science research on the reidentification of individuals from anonymized data has given some observers in the legal community the impression that the utilization of data is incompatible with strong privacy guarantees, leaving few options for balancing privacy and utility in various data-intensive settings. This bleak assessment is incomplete and somewhat misleading, however, because it fails to recognize the promise of technologies that support anonymity under a standard that computer scientists call differential privacy. This standard is met by a database system that behaves similarly whether or not any particular individual is represented in the database, effectively producing anonymity. Although a number of computer scientists agree that these technologies can offer privacy-protecting advantages over traditional approaches such as redaction of personally identifiable information from shared data, the legal community’s critique has focused on the burden that these t...
310 Hastings Comm/Ent LJ [Vol. 19:309 Introduction Last summer's district court decision in ... more 310 Hastings Comm/Ent LJ [Vol. 19:309 Introduction Last summer's district court decision in ACLUv. Reno,1 enjoining enforcement of the Communications Decency Act of 1996,2 was hailed by the on-line civil liberties community as "a resounding victory for First Amendment rights ...
II. DEFINING SOFTWARE PRODUCT MARKETS......................................9 A. Market Definition... more II. DEFINING SOFTWARE PRODUCT MARKETS......................................9 A. Market Definition Generally ........................................................9 B. Product Markets Generally........................................................10 1. Demand Substitutability ..........................................................12 a. Functional Interchangeability .............................................13 b. Propensity to Switch ............................................................14 c. Product and Price Differentiation .......................................14 d. Price Discrimination Markets .............................................15 e. Illustration: Product Differentiation and Price Discrimination in the Cellophane Case .....................19 f. Quality Restraints .................................................................21 2. Supply Substitutability ............................................................24 C. Software Product Markets ...........
Like many other animals, humans have extended the functional reach of their bodies by inventing t... more Like many other animals, humans have extended the functional reach of their bodies by inventing tools to achieve their goals. At the most fundamental level, progress in the useful arts can be measured by the extent to which humans can make and use these tools to produce the results and effects they desire. Patent claims properly demarcate this progress when they define these tools (or methods of making or using them), not merely where and how far the tools reach. Kinematic properties, which describe the geometric motions of structural elements without regard to the forces that cause them to move, should therefore not be considered sufficiently concrete to delineate the scope of a mechanical patent claim. This Article critically examines kinematically abstract claims in the U.S. surgical robotics industry, where claims purporting to cover all mechanisms exhibiting a specific kinematic property are widespread. First, it describes the role of patents and kinematic claiming in Intuitive...
The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidanc... more The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored a series of opinions identifying the “marketplace” as an operational context in which a claimed invention is not likely to be unpatentably abstract. This Article argues that this reliance on the “marketplace” is untenable and should form no part of patent-eligibility doctrine.
The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate s... more The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate structural support for a means-plus-function element in a software patent claim under § 112(f). A recent proposal by Mark Lemley fully endorses this proposition and seeks its broader application. The concept of an algorithm, however, is too slippery to serve as the basis for such a rule. In this Article, I argue that this overreliance on the algorithm concept originated in a revisionist gloss on the Federal Circuit\u27s 1994 Alappat decision. Informed by a closer reading of what Alappat actually has to say about claim construction under § 112(f), I propose a more stable concrete causation standard that is not only applicable to all technologies, but also well-aligned with the reforms in the software field intended by Lemley\u27s proposal
With the passage and implementation of the “first-to-file ” provisions of the America Invents Act... more With the passage and implementation of the “first-to-file ” provisions of the America Invents Act of 2011, the U.S. patent system must rely more than ever before on patent documents for its own ontological commitments concerning the existence of claimed kinds of useful objects and processes. This Article provides a comprehensive description of the previously unrecognized function of the patent document in incurring and securing warrants to these ontological commitments, and the respective roles of legal doctrines and practices in the patent system’s ontological project. Among other contributions, the resulting metaphysical account serves to reconcile competing interpretations of the written description requirement that have emerged from the Federal Circuit’s recent jurisprudence, and to explain why the patent system is willing and able to examine, grant and enforce claims reciting theoretical entities. While this Article is entirely descriptive, it concludes by identifying promising...
In recent years, the U.S. mathematical community has been directing unprecedented attention to th... more In recent years, the U.S. mathematical community has been directing unprecedented attention to the problem of partisan gerrymandering, aided by computational advances and spurred by litigation challenging the spate of extreme partisan redistricting that followed the 2010 census. As North Carolina scholars who have been involved in the landmark Rucho v. Common Cause litigation, we have written this Article with the threefold aim of explaining how the expert analysis of North Carolina's congressional map was performed, how it was used to substantiate the plaintiffs' claims at trial and on remand, and crucially, how it may serve to address the justiciability concerns that have long attended the Supreme Court's partisan gerrymandering jurisprudence and have represented the legal context for our work.
Recent computer science research on the reidentification of individuals from anonymized data has ... more Recent computer science research on the reidentification of individuals from anonymized data has given some observers in the legal community the impression that the utilization of data is incompatible with strong privacy guarantees, leaving few options for balancing privacy and utility in various data-intensive settings. This bleak assessment is incomplete and somewhat misleading, however, because it fails to recognize the promise of technologies that support anonymity under a standard that computer scientists call differential privacy. This standard is met by a database system that behaves similarly whether or not any particular individual is represented in the database, effectively producing anonymity. Although a number of computer scientists agree that these technologies can offer privacy-protecting advantages over traditional approaches such as redaction of personally identifiable information from shared data, the legal community’s critique has focused on the burden that these t...
310 Hastings Comm/Ent LJ [Vol. 19:309 Introduction Last summer's district court decision in ... more 310 Hastings Comm/Ent LJ [Vol. 19:309 Introduction Last summer's district court decision in ACLUv. Reno,1 enjoining enforcement of the Communications Decency Act of 1996,2 was hailed by the on-line civil liberties community as "a resounding victory for First Amendment rights ...
II. DEFINING SOFTWARE PRODUCT MARKETS......................................9 A. Market Definition... more II. DEFINING SOFTWARE PRODUCT MARKETS......................................9 A. Market Definition Generally ........................................................9 B. Product Markets Generally........................................................10 1. Demand Substitutability ..........................................................12 a. Functional Interchangeability .............................................13 b. Propensity to Switch ............................................................14 c. Product and Price Differentiation .......................................14 d. Price Discrimination Markets .............................................15 e. Illustration: Product Differentiation and Price Discrimination in the Cellophane Case .....................19 f. Quality Restraints .................................................................21 2. Supply Substitutability ............................................................24 C. Software Product Markets ...........
Like many other animals, humans have extended the functional reach of their bodies by inventing t... more Like many other animals, humans have extended the functional reach of their bodies by inventing tools to achieve their goals. At the most fundamental level, progress in the useful arts can be measured by the extent to which humans can make and use these tools to produce the results and effects they desire. Patent claims properly demarcate this progress when they define these tools (or methods of making or using them), not merely where and how far the tools reach. Kinematic properties, which describe the geometric motions of structural elements without regard to the forces that cause them to move, should therefore not be considered sufficiently concrete to delineate the scope of a mechanical patent claim. This Article critically examines kinematically abstract claims in the U.S. surgical robotics industry, where claims purporting to cover all mechanisms exhibiting a specific kinematic property are widespread. First, it describes the role of patents and kinematic claiming in Intuitive...
The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidanc... more The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored a series of opinions identifying the “marketplace” as an operational context in which a claimed invention is not likely to be unpatentably abstract. This Article argues that this reliance on the “marketplace” is untenable and should form no part of patent-eligibility doctrine.
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