What Genius Will Teach Patent Examiners?
Gottschalk v Benson , 409 U.S. 63 (1972) was a United States Supreme Court case in which the Court ruled that a process claim directed to a numerical algorithm, as such, was not patentable because "the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." That would be tantamount to allowing a patent on an abstract idea, contrary to precedent dating back to the middle of the Nineteenth Century. The Court added "it is said that the decision precludes a patent for any program servicing a computer. We do not so hold." The case was argued on October 16, 1972 and was decided November 20, 1972.
Following graduation, Einstein could not find a teaching post. After almost two years of searching, a former classmate's father helped him get a job in Berne, at the Federal Office for Intellectual Property, the patent office, as an assistant examiner. His responsibility was evaluating patent applications for electromagnetic devices. In 1903, Einstein's position at the Swiss Patent Office was made permanent, although he was passed over for promotion until he "fully mastered machine technology".
With friends he met in Berne, Einstein formed a weekly discussion club on science and philosophy, jokingly named "The Olympia Academy". Their readings included Poincaré, Mach, and Hume, who influenced Einstein's scientific and philosophical outlook.
During this period Einstein had almost no personal contact with the physics community. Much of his work at the patent office related to questions about transmission of electric signals and electrical-mechanical synchronization of time: two technical problems that show up conspicuously in the thought experiments that eventually led Einstein to his radical conclusions about the nature of light and the fundamental connection between space and time.
Source: Wikipedia on Albert Einstein
Inspiration for this post came from these leading patent law bloggers:
USPTO Implements New Program to Teach Examiners How to Read and Understand Case Law
David French writes:
Patent rights are provided by law and laws are written by men. There is no constitutional right for an individual to receive a patent for his innovative concepts. The legislators have discretion as to prerequisites for the granting of patent rights.
Article 27(1) of the TRIPS protocol to the WTO treaty provides that: "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application". There are exceptions, but they do not extend to computer programs.
Nevertheless, for the United States, signing a treaty does not import law into the country. The law is the text as approved by Congress and signed by the President.
All this may sound trite, but the question remains: do we want to have a law that accepts as patentable inventions intangible conceptions that are not defined in terms of material objects and the manipulation of material objects?
There is so much at stake that Congress is afraid to pass clarifying legislation. So the Courts are left to interpret the existing statute in terms of the probable intent of the legislators, modulated by the good of the country.
The Courts are therefore left to decide whether the words of the existing statute can be interpreted to allow the granting of patents for intangible conceptions that are not defined in terms of material objects and the manipulation of material objects.
If you are on the side of seeing private monopolies issued, the answer is clearly: "Yes". If you are on the side of addressing the public need, this is a more challenging question.