Abstract
AIPLA 2017 Spring Conference turned out to be the most interesting event by AIPLA’s standing, especially as to the IDL. This paper upfront confirms the truth of this assumption: The event provided the best survey/comment up to now concerning the recent nationwide §101/Alice-guidelines and similar international developments. Section 2 namely reports that the AIPLA 2017 Spring Conference was the first internationally attended meeting of the large expert community of 35 USC Substantive Patent Law (“SPL”) that in several panels
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showed the by now vastly stabilized understanding of the Supreme Court’s Alice decision
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complained of the still total helplessness as to an urgently needed key to ─ or, to the point: ‘clou’ of ─ the Supreme Court’s Alice analysis, i.e. its MBA-framework, which would clearly/convincingly, totally robustly, and broadly acceptably separate patent-eligible (“PE”) from nPE inventions.
But this ‘clou’ exists, even a ‘big clou’, as the latter enables by IDL for any ETCI to prove rationally & mathematically •trivially and •semi-automatically its totally robust SPL satisfaction (comprising its PE).
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Notes
- 1.
(a)FSTP = ‘Facts Screening/Transforming/Presenting’ (Several versions of it were published already after the Supreme Court’s KSR decision, as initial drafts and then incomplete as without PE checks, yet notionally with ‘E-crCs’ already). ETCI = ‘Emerging Technologies Claimed Invention’.
The §101 position papers of the here involved large IPR associations/organizations/consortia resp. dominating innovation-economies in the US came until the end of 2016 solely from the USPTO [10, 14, 15], in 2017 (vastly US election caused) from the IPO [23], the ABA [25], the AIPLA [22], and in between from such important consortia as e.g. the EFF [28] and the Internet Association [19] ─ importantly also the SIPO [26]. None of these statements still steers the formerly often openly confrontative course of •bashing the Supreme Court’s framework(d) or •just misinterpreting it ─ both earlier pursued by a thin but resilient resistance net of broadly known veterans of leading the ‘old school of the NPS’, e.g. by a seemingly smaller part of the CAFC, in total by today being a small minority, clearly shrinking yet residual for a potentially long time.
But this change does not mean the Supreme Court’s short term interception potential is no longer needed, e.g. for enforcing its Teva decision (‘upgrading’ of district courts v. CAFC & USPTO in SPL precedents about ETCIs [29, 30]) and/or the it supporting Heartland decision [30].
(b)except in part of this resistance net(a) with its belief in an US patent system, •reconciling itself after the many CAFC, district courts, and PTO in- and external clashes [1, 30], that •in the future would consistently/predictably decide the large number of ETCI-based cases •without adjusting the SPL interpretation to what the Supreme Court’s framework requires ─ being as stable as ‘the earth is flat’, ‘electrons are of wood’, …
(c)The Supreme Court left this “clou” to be derived by the patent community’s experts and the CAFC from the direction pointing hints provided by what it called [18/ftn2.b.2] its [MBA-] “framework”(d). Meanwhile it is expected that this new notion of the Alice analysis, “clou”, is exactly to the point.
(d)─ known since [17, 18, 21] at the latest and now trivialized by the IDL. Thereby “MBA”, standing for “KSR/Bilski/Mayo/Myriad/Biosig/Alice”, indicates that all 6 Supreme Court decisions are needed for deriving from them this ‘clou’(c). Its highlighting is omitted from here on.
(e) according to the definition for an ETCI to be “PE”, provided by the MBA-framework(c).
(f)The nontrivial reason being: [17, 21] proved rationally and even mathematically: “An ETCI satisfies SPL iff it passes the FSTP-Test”.
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(a) ─ except by the residual resistance groups1(b) ─
(b)─ which it thereafter in principle found by its ‘Solomonic’ Alice analysis ─
(c)A way ─ alternativeless/trivially being a test ─ to avoiding this disincentivation is called “Solomonic” if it finds any ETCI to be PE iff it is rationalizably/mathematizably provably ‘limited preemptive’, which is equivalent to a conjunction of tests not referring to preemptivity.
This follows from the FSTP-Test as having, for any ETCI that passes it ─ because of test1 ─ for any COM(ETCI) a rational/mathematizable refined claim interpretation proven correct. Moreover then holds: test1–test10 are rationally and mathematically proven as comprising any ETCI’s PE-criterion (test4–test7) [17] ─ with test7 redundant to test5∧test6 (i.e., its test4∧test7 = test4∧test5∧test6) ─ and PA-criterion (test8–test10), each depending on ETCI-individual and potentially also RS-specific “MBA-framework knowledge, MBA-FK”, by the Supreme Court required to be disclosed for the purpose by the ETCI’s specification and potentially also RS-specific TTi’s specifications [31].
(d)A side remark: Due to the socioeconomic trends in patenting ETCIs [6(a)/(b)/(c)] these are socially affordable only iff SPL-satisfiability test is vastly automatable. Because of the future socioeconomic predominance of ETCIs, refraining from automating it also puts the NPS into jeopardy.
(e)─ which comprises guiding the tester by questions to disaggregate the ETCI’s A-crCs into its E-crCs and to adjust the potential TTi’s to this E-KR.
(f)The USPTO’s IEG starts the Alice analysis ─ instead from these basic §101/Alice-truths and using therein the rational [31] MBA-FK, as the Supreme Court requires2(c) ─ by its “2-step-test” simplifying the Alice analysis, which rationally totally ignores the individual MBA-FK about this ETCI2(c) and instead uses highly metaphysical ‘pseudo-rationales’ as to the being PE of the ETCI’s subject matter. This MBA-FK is inevitably needed for refining the basic dilemma as required by the Alice analysis for rationally deriving for this ETCI its individual PE decision. Thus, for the USPTO’s “2-step-test” it is rationally impossible to rationally deliver the same PE decision as the Alice analysis ─ which leaves the user without any guidance how to rationally decide an ETCI’s being. NOTE: This legal error applies also to CAFC decisions proceeding as the USPTO.
- 3.
(a)Two clarifications, not yet hitting the “clou point”, are in place here:
• none of the parties1(a) provide a suggestion alternative to the MBA-framework for how to exclude unlimited preemptive ETCIs from being patented ─ the latter politically threaten to put the entire US NPS into jeopardy as socioeconomically untenable, unless fair sublicensing of preempted ETCIs is legally enforced (whereby the notion of ‘fair’ is known to be indefinable, and thus creates another source of inconsistency and unpredictability of patent precedents about ETCIs) ─ and
• the FSTP-Technology, basically the FSTP-Test ─ induced by the MBA-framework’s thought, by FSTP-Technology brought into line with AIT [2] thinking ─ shows that none of the suggested modifications1(a) of the MBA-framework comprises a hint that it has fully recognized this Solomonic cognition of the Supreme Court (disclosed by its Alice’s PE analysis and transformed into FSTP-Test, i.e. into purely mathematical thinking as envisioned by Kant [24]). This statement holds also for the USPTO’s IEG interpretation of the Supreme Court’s Alice analysis, its ‘2-step-test’, and for any of the current CAFC PE precedents (even in DDR, though it is correct in the Al
(b)and evidently none of the parties1(a) has attempted(c) anything alike. This Alice analysis refinement is scientifically/notionally/semiotically rationally clarified since years [3,4,5] and published for the US patent community. I.e., hence since then it is available ─ this “clou” it now asks for. This delay is due to the legal bodies1(a) are scholastics minded, not analytics/cognitions driven ─ otherwise they also might have recognized the FSTP-Test’s charm as already embodying the “clou” and now as directly guiding to trivializing an ETCI’s SPL-satisfaction testing (provided they had also invented the IDL needed to this end), i.e. embodying the “big clou”.
(c)─ barring rationality to penetrate into this intricate realm of the SPL. This has been enabled by all time interest driven pretentions that patent law is insolubly interwoven with the mystery of successful constructive creativity (indispensable for creating ETCIs). But since the revitalization of (decent) AI, in the 70s/80s, it is known how in principle to separate the •transcendence of this mystery from •rational/mathematical thinking about it [7, 13]. Namely: By creating inventive concepts, encapsulating their increments of transcendence into individual axioms, and tying these transcendences’ effects into rationality, predominantly by lowest semantic/rational effort required to this end, e.g. by their applications/specifications/systems/incarnations/instantiations/declaration/objectivation/…. This then revolutionary knowledge and the meanwhile incredible increase of the power of so structured IT systems (alias general purpose computers) enabled those familiar with both areas of human cognition to practice this thinking of advanced system design ─ here for designing and implementing FSTP-Technology and the IES prototype for it [16] in the FSTP-Project.
Similar paradigm shifts, as caused by this FSTP-Project ─ induced by the Supreme Court created SPL-precedents about ETCIs ─ occurred during the last 3 millennia in any technology. The time that any such paradigm shift needed from its technology’s creation to the latter’s full use shrunk from originally dozens of centuries (e.g. the change-over from Ptolemaic to Copernican navigation), to few centuries (e.g. high-voltage technology from Lincoln to Tesla), to few dozens of years (e.g. in rocketry), and now to few years (e.g. in IT, FSTP-Technique).
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Schindler, S. (2018). The Recent AIPLA Meeting’s New Trend as to Nationwide §101-Guidelines and the “Invention Description Language, IDL” ─ Trivializing Using ETCIs’ FSTP-Tests. In: Debruyne, C., et al. On the Move to Meaningful Internet Systems. OTM 2017 Workshops. OTM 2017. Lecture Notes in Computer Science, vol 10697. Springer, Cham. https://doi.org/10.1007/978-3-319-73805-5_23
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