Health Savings Accounts

For people who have health insurance plans with a high deductible, the tax code and/or regulations provide the possibility of a Health Savings Account (HSA), to which one can make tax deductible contributions for the purpose of covering health expenses not covered by insurance.

The problem here is that the contribution limit for an HSA is 3250, while the deductible for my insurance from the New York State Bar Association is $5000.

The contribution limit should be the same as my deductible.

CLS Bank v. Alice Corporation

CLS Bank v. Alice Corporation ("Alice")

If you have been reading this blog, you might have noticed that I was very critical of the Mayo v. Prometheus ("Mayo") case, see  http://annebarschall.blogspot.com/2012/05/mayo-v-prometheus.html

Aside from finding the reasoning defective in that opinion, I would characterize it as follows.  If

▪   the claim recites a known method of measuring a response of a natural system, and

▪   the only invention is that a measurement taken in accordance with the method is within a new range of values

then the invention is not patentable subject matter.  I would appreciate comments about this interpretation.

For the moment, though, going with that interpretation, I am a bit surprised at those who feel that the Alice case necessarily needs to be governed by the Mayo case.  Granted, it was unfortunate that Mayo was not mentioned in Alice.  Still, it's not clear to me why it absolutely should have been.

Alice seems to be squarely within the purview of Bilski, a case about a business method, not at all in same category as Mayo, which deals with natural systems.  The mere fact that both cases are within the domain of patentable subject matter, does not mean that the later one need necessarily be governed by the earlier one.

A court might easily conclude that business methods are not mere abstract ideas or natural laws, and that, therefore, they are not subject to the same kind of scrutiny as was applied in Mayo.

If there is a known apparatus, such as a computer, and the invention lies in applying the computer to a business method, to me this seems very different from applying the computer to measuring a response of a natural system.

In any case, I like the way the federal circuit analyzed the Alice case already -- and fervently hope that the “Supremes” leave it just the way it is.

What is wrong with Gottshalk v Benson

I have the feeling that people are unlikely to read my entire brief from Bilski.  Therefore I am excerpting here just the part that criticizes Gottshalk v Benson, so that people can find it more easily.

GOTTSHALK V. BENSON[X]

This seminal case in the field of patentable subject matter was decided with an opinion written by Justice Douglas.  When the undersigned was first learning about patent law, she heard patent attorneys sniping rather cynically about Justice Douglas, opining that the approach of Justice Douglas towards patents was “The only valid patent is one that has not been reviewed by this court.”  Perhaps attorneys did not say so in court papers, but they said so to each other.

The Benson case contains a number of statements that invite clarification or repudiation. 

Anxiety about the idea of patent monopoly manifests, e.g. “The end use may (1) vary from the operation of a train to verification of drivers’ licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus…” 408 U.S. at 68

Some of this language seems to contradict the opinion’s later conclusion that the algorithm had no practical application outside a digital computer. 

Additionally, the anxiety expressed here about breadth of claims really has nothing to do with subject matter.  If one imagines hypothetically the first inventor of the carpentry nail, for instance, such an inventor could get a patent that would cover a nail, whether that nail were to be used in constructing a house, constructing a boat, scratching the surface of a soft material, or cleaning dirt out of a crevice.  This is the nature of a patent, to give the inventor broad scope of protection – and, yet, if one were to apply the reasoning of the above paragraph, one might strike down a patent on such an original mechanical device out of fear of its scope.  This would defeat the whole purpose of the patent law.

Another statement in Benson is “A digital computer, as distinguished from an analog computer, is that which operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand.” 409 U.S. at 65.[xi] Perhaps some computer scientists thought this was  true at the time, but experts in artificial intelligence and neurology no longer believe that computers think like people, at least when using the type of program that was at issue in this case[xii].  People may have in their heads some illusion that they are thinking the way that computers process data, but this is not at all a complete explanation of the mysterious workings of the human brain.

Another statement from Benson is:

We have, however, made clear from the start that we deal with a program only for digital computers… The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.  409 U.S. 71-72

These assertions recognize that the invention can only be practically used in a computer and then jump to the conclusion that the entire algorithm is pre-empted.   This reasoning, operating in conjunction with the belief stated earlier that computers think like people, gives rise to the disturbing implication that software related inventions include human thought, “pre-empting the entire algorithm” — that if computers think like people, then a claim reading on a computer processing reads on a person thinking.  Such a leap of logic would be a clear fallacy.  If one starts from a premise that an airplane flies like a bird, one should not therefore conclude that a claim reading on an airplane flying would read on a bird flying. 

Moreover, there remains the inconsistency between the one statement saying that the claim reads on a person and the other statement that says the reasoning is motivated by the fact that the algorithm has no substantial application outside a computer.  Indeed, no art having apparently been cited, it would appear that no one was motivated to attempt this rather cumbersome representation of decimal numbers prior to the arrival of computer storage with its binary nature.

Another sub-optimal aspect of this opinion is a failure to make a distinction between two very different claims.  Claim 13[xiii] could conceivably have read on a human working with head and hand.  Claim 8[xiv], on the other hand, recited the use of a shift register.  A shift register is a piece of electronic equipment that can only be used with other electronic equipment, such as sources of power, electronic data signals, and clock signals.  A shift register absolutely and categorically cannot be used by a human’s naked hand.  This is physically impossible.  The failure of Benson’s insufficiently considered opinion to recognize the distinction  between these two claims has given rise to much later confusion.

There seems to be a prejudice against electronic devices in both Benson and Morse.  Patent attorneys, with their scientific training, have studied Newtonian mechanics[xv] together with Maxwell’s Equations[xvi] regarding electricity and magnetism in the same physics courses with the same physics professors.  They have seen, in quantum mechanics, how subatomic wave/particles — surrounded mostly by empty space — cooperate to create classical mechanics, electricity, magnetism, and radiation — allowing one form of physical phenomenon to be transformed into another: matter into energy and energy into matter[xvii].  Those thus trained have no philosophical rubric with which to distinguish electrical and mechanical devices one from the other logically, rendering the distinctions between the two categories from the point of view of patentable subject matter unjustifiable.

Endnotes:

[x] Gottshalk v. Benson, 409 U.S. 63, 172 U.S.P.Q. (BNA) 673,  (1972)

[xi] The aspect of computer software that looks like mathematics, namely its source code, belies the fact that upon compilation and execution that software actually becomes a configuration of a hardware device. see e.g. “Dissent of Commissioner Hersey” to the report of the National Commission on Ne Technological Uses of Copyrighted Works” at Ch. 3 (CONTU) (1978) http://digital-law-online.info/CONTU/contu14.html.

[xii] cf  M. Minski, “Why People Think Computers Can’t”, (MIT, Cambridge, 7/6/2005)) http://aleph0.clarku.edu/~jbreecher/public/2005_Can_Computers_Think/Minsky-WhyPeopleThinkComputersCant.pdf  (Describing how early computer programs were quite different from human thought and how researchers are trying to make them closer);  J. Bryner, “Greatest Mysteries: How Does the Brain Work?” (Live Science, Au., 2, 2007)  http://www.livescience.com/strangenews/070802_gm_brain.html (explaining that scientists still do not know how the brain works, because of the complexity of neurons, so it would be difficult to conclude that binary electronic circuits such as are found in a computer actually work “like” the brain)

[xiii] “A data processing method for converting binary coded decimal number representations into binary number representations comprising the steps of—

“(1) testing each binary digit position i , beginning with the least significant binary digit position, of the most significant decimal digit representation for a binary ‘0’ or a binary ‘1’;

“(2) if a binary ‘0’ is detected, repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;

“(3) if a binary ‘1’ is detected, adding a binary ‘1’at the (i+1)th and (i+3)th least significant binary digit positions of the next lesser significant decimal digit representation, and repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;

“(4) upon exhausting the binary digit positions of said most significant decimal digit representation, repeating steps (1) through (3) for the next lesser significant decimal digit representation as modified by the previous execution of steps (1) through (3); and

“(5) repeating steps (1) through (4) until the second least significant decimal digit representation has been so processed.” 409 U.S. at 74

[xiv] “The method of converting signals from binary coded decimal form into binary which comprises the steps of—

“(1) storing the binary coded decimal signals in a reentrant shift register,

“(2) shifting the signals to the right by at least three places, until there is a binary ‘1’ in the second position of said register,

“(3) masking out said binary ‘1’ in said second position of said register,

“(4) adding a binary ‘1’ to the first position of said register,

“(5) shifting the signals to the left by two positions,

”(6) adding a ‘1’ to said first position, and

“(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary ‘1’ in the second position of said register.” 409 U.S. at 73-74

[xv] see, e.g. I. Newton, De motu corporum in gyrum (1684); I. Newton, I Newton, Philosophiae Naturalis Principia Mathematica (1687)

[xvi] In electromagnetism, Maxwell's equations are a set of four partial differential equations that describe the properties of the electric and magnetic fields and relate them to their sources, charge density and current density. These equations are used to show that light is an electromagnetic wave. Individually, the equations are known as Gauss's law, Gauss's law for magnetism, Faraday's law of induction, and Ampère's law with Maxwell's correction.

These four equations, together with the Lorentz force law are the complete set of laws of classical electromagnetism. The Lorentz force law itself was actually derived by Maxwell under the name of "Equation for Electromotive Force" and was one of an earlier set of eight Maxwell's equations.  “Maxwell's equations,” http://en.wikipedia.org/wiki/Maxwell%27s_equations (18 February 2009, at 01:59)

[xvii] In the immortal prose of Albert Einstein E=mc²

Change in FB policies

This drivel that is going around about the new FB policies is making me insane. Everyone is going hysterical over nothing. 

1) they are asking for your feedback. It's not a final policy. If you don't like it, let them know; 

2) a license means that you are authorizing them to put your material on the site. If you don't want them to put the material on the site, why would you post it? If you 

don't give them a license, then they have to delete it. That's stupid.

3) the license is subject to your privacy settings. You aren't giving over ownership of the property to them. They say that they will delete it if you delete it. A non-exclusive license is not an assignment, which conveys ownership.

Their terms are reasonable and necessary. Stop spreading mindless panic.

Working on a creative business card

I am in the process of creating a new business card.  I decided to do it with calligraphy, which is one of my hobbies.  I'm going to put a slightly paraphrased version of the U.S. Constitution, Article I, section 8, paragraph 8 on the back. 

I kept doing different versions of this clause, not liking any of them.  Now when I look at them, I like all of them.  

                             

This is my current version of the front. 

Right now, I am thinking the 6th one above best matches the front.

Perils of free software

My son, David, is a Stallmanite. This means that he has a religious attachment to free software. 

He recommended "Libre Office" to me for use on my new deskbook, since I did not want to pay for Microsoft Office. I used this software to work on my third novel last summer.

Now I'm back using Microsoft Word for Mac 2011 and trying to process the .rtf files generated by Libre Office.

I had previously noted last sumer that Libre Office deleted a lot of punctuation from the .rtif files coming from WORD, which was a huge problem. Now I am noticing that it inserted Chinese characters going back to WORD.  It particularly seemed to create a sequence that results in WORD for mac 2011 interpreting directional apostrophes and quotation marks as part of the succeeding character.

My son's passion for free software is undiminished and he believes I should abandon .rtf files in favor of open document files. He cites

http://diaryproducts.net/for/geek/microsoft_rtf_specification_nightmare

I have corresponded with Libre Office. They apparently lack Microsoft Word for mac 2011 and therefore cannot reproduce the problem.

On the one hand, I suspect that David is right that Microsoft is doing things to make its file formats indecipherable so that competitors cannot make software that reads them. On the other hand, I value compatibility more than idealism on this issue and feel annoyed with David for inducing me to take on this obscure office suite.

Addendum 11/3/12

My son persists in touting the benefits of free software and cites this:

Addendum 11/26/12

Someone claims that Libre Office 3.6.3 has corrected this problem.  I don't know.

Addendum 12/20/12

I had an old computer around running Windows that had died of a virus.  I had already paid twice to revive it, $200 a pop; and did not want to pay again.  We decided to install Ubuntu on it.  Then we wanted to add a wireless card, so we could interface with our wireless router.  We bought a netis WF-2117.  It doesn't work.  I contacted them.  They say they only support Windows.  Frustrating.

A copy of my comment from Judge Posner's recent blog

Here in the USA, we live in an environment where traditionally there have been patents and copyrights.  This legal tradition has encouraged a culture where innovation is valued, because innovators have reaped the rewards of innovation.  In cultures where innovation was not rewarded, innovation was not valued in the same way.  As a result of the culture established here, due to strong intellectual property protection, the USA has traditionally had the best science and engineering in the world.

Software people cite the early progress in the software industry, when patent protection was either not available or not sought, as evidence that patent protection is not necessary.  This is a fallacy.

First, those software people worked in this culture that had engrained encouragement for innovation that came from our history of intellectual property protection.

Second, there was quite early on a strong move for at least copyright protection to help out those innovators.  Early copyright cases quickly started talking about protecting "structure, sequence, and organization," to try to extend protection as broadly as possible.  This was a bit of a stretch in the law, but it showed a recognition of the importance of rewarding those who created economic benefit to the country.

Problems with software patents have continued because at first the United States Patent and Trademark Office refused to hire patent examiners with a computer science background, so poor art searches were performed.

More problems have been created because the original Supreme Court  case on this topic, Gottshalk v Benson, has severe logical flaws and a nonsensical result.  I encourage people to read my brief in the Bilski case for more discussion of that.  My brief is up on my blog.

The nonsensical opinion in that first case has resulted in extensive legal uncertainty and much litigation, leaving the entire field of patent protection for software unsettled for almost half a decade.

Have nots always want to take from haves.  People who don't have money want to take money from people who do.  People who don't have houses want to take housing from people who do.  People who do not have intellectual property want to take it from those who do.   I find this ethos repugnant.

Patents need to be whole heartedly endorsed by statute and the entire line of cases stemming from Gottshalk v Benson needs to be overturned.  

Moreover, the idea that mathematics is not an invention also needs to be overturned.