No. 08-964
================================================================
In The
Supreme Court of the United States
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BERNARD L. BILSKI and RAND A. WARSAW,
Petitioners,
v.
JOHN J. DOLL, ACTING UNDER SECRETARY
OF COMMERCE FOR INTELLECTUAL
PROPERTY AND ACTING DIRECTOR,
PATENT AND TRADEMARK OFFICE,
Respondent.
----------------- ♦ -----------------
On Writ Of Certiorari To The
United States Court Of Appeals
For The Federal Circuit
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BRIEF OF ON TIME SYSTEMS, INC. AS AMICUS
CURIAE IN SUPPORT OF NEITHER PARTY
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STUART P. MEYER
Counsel of Record
TYLER A. BAKER
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
(650) 988-8500
Counsel for Amicus Curiae
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
QUESTIONS PRESENTED
1. Whether the Federal Circuit erred by holding
that a “process” must be tied to a particular machine
or apparatus, or transform a particular article into a
different state or thing (“machine-or-transformation”
test), to be eligible for patenting under 35 U.S.C.
§ 101, despite this Court’s precedent declining to limit
the broad statutory grant of patent eligibility for
“any” new and useful process beyond excluding
patents for “laws of nature, physical phenomena, and
abstract ideas.”
2. Whether the Federal Circuit’s “machine-or-
transformation” test for patent eligibility, which
effectively forecloses meaningful patent protection to
many business methods, contradicts the clear
Congressional intent that patents protect “method[s]
of doing or conducting business.” 35 U.S.C. § 273.
ii
TABLE OF CONTENTS
Page
INTEREST OF THE AMICUS CURIAE .............
1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT .....................................................
2
DISCUSSION ......................................................
4
I.
THE
TERM
“ABSTRACT” HAS BEEN
USED TO DESCRIBE SEVERAL DIF-
FERENT CONCEPTS ...............................
4
A. Laws of Nature ....................................
7
B. Overbroad Claim Scope .......................
8
C. Lack of Specificity ...............................
9
D. Manipulation of Intangibles ................ 10
II.
MANIPULATION OF INTANGIBLES
ALONE IS AN INSUFFICIENT REASON
TO PRECLUDE PATENTABILITY ........... 11
III. THE FEDERAL CIRCUIT’S STANDARD
IS CONTRARY TO CONGRESSIONAL
INTENT AND THE COURT’S PREC-
EDENTS .................................................... 15
CONCLUSION ..................................................... 17
iii
TABLE OF AUTHORITIES
Page
CASES
Corning v. Burden, 56 U.S. 252 (1853) ........................ 9
Diamond v. Chakrabarty, 447 U.S. 303 (1980) ......... 16
Diamond v. Diehr, 450 U.S. 175 (1981) ............ 5, 11, 12
Funk Bros. Seed Co. v. Kalo Inoculant Co., 333
U.S. 127 (1948) ...................................................... 7, 8
Gottschalk v. Benson, 409 U.S. 63 (1972) .................... 9
Le Roy v. Tatham, 55 U.S. (14 How.) 156 (1852) ..... 6, 9
Mackay Radio & Telegraph Co. v. Radio Corp.
of America, 306 U.S. 86 (1939) ............................. 7, 8
O’Reilly v. Morse, 56 U.S. 62 (1853) ................... 8, 9, 16
Parker v. Flook, 437 U.S. 584 (1978) ........................... 8
Tilghman v. Proctor, 102 U.S. 707 (1880) .................. 16
STATUTES
35 U.S.C. § 101 ................................................... passim
35 U.S.C. § 102 ........................................................... 15
35 U.S.C. § 103 ........................................................... 15
35 U.S.C. § 112 ................................................ 10, 15, 16
35 U.S.C. § 302 ........................................................... 16
35 U.S.C. § 311 ............................................................ 16
RULES
Supreme Court Rule 37 ............................................ 1, 2
1
INTEREST OF THE AMICUS CURIAE1
On Time Systems, Inc. is an advanced-technology
company specializing in software for the optimization
of complex industrial problems. The technology of
On Time Systems has applications in numerous
industries ranging from shipbuilding to the design
of intelligent traffic control systems for urban areas.
On Time Systems serves both public and private
sector customers. The key executives at On Time
Systems are Dr. Matthew Ginsberg and Dr. David
Etherington, the co-founders of the University of
Oregon’s Computational Intelligence Research
Laboratory (“CIRL”). Since its foundation, CIRL has
been a leading research laboratory in artificial
intelligence, search optimization and constraint
satisfaction. On Time Systems was created to work
with CIRL to develop and commercialize applications
of optimization technology. The personnel of On Time
Systems have multidisciplinary education, training
and industry experience. For example, Dr. Ginsberg’s
education was as a relativistic astrophysicist and
mathematician; Dr. Etherington was trained in
computer science and artificial intelligence.
On Time Systems holds a number of patents on
its technologies, and at the same time is aware that
1 In accordance with Sup. Ct. R. 37, On Time Systems
states that this brief was not authored in whole or in part by
counsel to a party, and that no monetary contribution to the
preparation or submission of this brief was made by any person
or entity other than this amicus curiae or its counsel.
2
third parties hold patents on technologies in the
various industry segments in which On Time Systems
operates. Those patents are the result of extensive
and expensive research and development. Without
patent protection, the results of those efforts could be
easily copied by competitors, dramatically reducing
the incentives for innovation.
On Time Systems has no interest in any party in
the present case or any stake in the outcome of this
case. Rather, On Time Systems has a strong interest
that this Court interpret the patent law in a manner
consistent with the constitutional underpinnings that
have fostered the remarkable story of innovation that
has defined this country from its agricultural
beginnings, through the Industrial Age and now into
the Information Age.2
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INTRODUCTION AND
SUMMARY OF THE ARGUMENT
The standard for patentability stated by the
Federal Circuit below is too narrow. This brief
addresses an issue that the Court will encounter
in drawing the line between patentable and
2 This brief is being filed with the consent of the parties. In
accordance with Sup. Ct. R. 37.2(a), On Time Systems provided
the parties with timely notice of its intention to file this amicus
curiae brief. In accordance with Sup. Ct. R. 37.3(a), the parties
have filed with the Clerk of this Court general consents to the
filing of amicus briefs.
3
unpatentable subject matter. Whether an “abstract”
claim is patentable depends critically on what one
means by “abstract.” This word has been used in
many different ways in the analysis of patentable
subject matter, often with little specificity as to the
sense in which it is used. It is entirely appropriate for
“abstract ideas” to be unpatentable if “abstract” refers
to something qualitative considered apart from a
subject or application, or if “ideas” refers to amor-
phous mental notions without any application outside
the mind. Historically, claims directed to “laws of
nature” have also been categorized as abstract ideas.
One may question the accuracy of such categorization
but the result, i.e., unpatentability, seems appropriate
in this usage as well.
However, when the word “abstract” is used to
refer to specific applications that happen to manipu-
late abstract representations of things rather than
physical objects, it is no longer sensible to presump-
tively rule out patentability on that basis alone. To
extend a blanket preclusion against any claim labeled
as “abstract” is to inaccurately conflate the distinct
notions of abstractness and natural principles. Such a
conflation does not honor the United States
Constitution, the language used by Congress in § 101,
this Court’s precedents, or the realities of modern life.
Inventions can be patentable without being of a sort
that would hurt if you dropped them on your foot.
On Time Systems takes no position on whether
Messrs. Bilski and Warsaw deserve a patent on their
method for managing consumption risk costs. There
4
may well be any number of reasons that such an
invention should not be afforded patent protection.
On Time Systems does, however, believe that the first
question presented by the Court must be answered in
the affirmative. The exclusive test for patentability
asserted by the Federal Circuit is far too limited in its
analysis, particularly in the context of modern
technological advances. On Time Systems urges the
Court to reject that standard in favor of a more
flexible one that is consistent with the encompassing
language of § 101. There is simply no reason in
precedent or principle to limit patents to inventions
that center on physical transformations or use of a
particular machine. And, in rejecting the standard
below, the Court should take care to distinguish
carefully between different concepts of abstractness.
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DISCUSSION
I.
THE TERM “ABSTRACT” HAS BEEN USED
TO DESCRIBE SEVERAL DIFFERENT
CONCEPTS
Numerous
other
amici have addressed the “laws
of nature, physical phenomena, and abstract ideas”
precedents of this Court in the briefs below and at the
petition stage. On Time Systems will not repeat those
presentations here. Rather, this brief will focus on a
very narrow issue within the larger discussion: the
various ways in which a process can be said to be
“abstract” and how that impacts its patentability.
5
Much commentary about the scope of patentable
subject matter has addressed the relationships
between processes and “laws of nature, natural
phenomena, and abstract ideas” as discussed, for
example, in Diamond v. Diehr, 450 U.S. 175, 185
(1981). There remains a paucity of discussion about
what may or may not make a process abstract per se.
This is a critical determination, since a process that is
abstract in one sense may as a result be un-
patentable, while a process that is abstract in another
sense should remain eligible for protection. The line-
drawing that needs to be done in this regard is
admittedly difficult, as shown by the fact that many
of this Court’s decisions regarding the boundaries of
patentable subject matter have been accompanied by
dissents evidencing a wide range of perspectives. This
brief discusses four ways in which processes have
been characterized as abstract. On Time Systems
suggests that processes that are abstract solely
because they involve manipulation of intangibles
should not be disqualified from patent protection on
that basis alone.
On Time Systems is not the first to recognize the
need to undertake more detailed consideration of the
precise words used in patentability analysis. This
Court recognized it over 150 years ago:
The word principle is used by elementary
writers on patent subjects, and sometimes in
adjudications of courts, with such a want
of precision in its application, as to mislead.
It is admitted, that a principle is not
6
patentable. A principle, in the abstract, is a
fundamental truth; an original cause; a
motive; these cannot be patented, as no one
can claim in either of them an exclusive
right. Nor can an exclusive right exist to a
new power, should one be discovered in
addition to those already known. Through
the agency of machinery a new steam power
may be said to have been generated. But no
one can appropriate this power exclusively to
himself, under the patent laws. The same
may be said of electricity, and of any other
power in nature, which is alike open to all,
and may be applied to useful purposes by the
use of machinery.
In all such cases, the processes used to
extract, modify, and concentrate natural
agencies, constitute the invention. The
elements of the power exist; the invention is
not in discovering them, but in applying
them to useful objects.
Le Roy v. Tatham, 55 U.S. 156, 174-175 (1852).
As detailed in the sections below, processes have
historically been labeled as “abstract” in at least the
four following distinct ways: (A) as reciting a law of
nature; (B) as referring to a broad application of a law
of nature without limitation; (C) as being vague
and lacking specificity; and (D) as referring to
manipulations of intangible entities. While there may
be reason to preclude patentability for the first three
categories, whether under § 101 or otherwise, there
is no similar reason to condemn inventions as
7
unpatentable solely because they can be placed in the
last category.
A. Laws of Nature
A first perspective on processes as abstractions
focuses on those processes that merely recite a “law of
nature,” and nothing more. Thus, a process of using
the Pythagorean theorem to determine the length of a
diagonal support piece (such as to support a wall
during construction) is appropriately thought of as
simply reciting and attempting to “own” that
theorem. This Court has, on a number of occasions,
held such processes to be unpatentable attempts to
wholly appropriate natural principles.
In
Funk Bros. Seed Co. v. Kalo Inoculant Co., 333
U.S. 127, 132 (1948), the Court recognized that an
application of a newly discovered natural principle
may be commercially valuable, but that is not
sufficient to make a claimed invention patentable.
“Even though it may have been the product of skill, it
certainly was not the product of invention. There is
no way in which we could call it such unless we
borrowed invention from the discovery of the natural
principle itself.” In contrast, in Mackay Radio &
Telegraph Co. v. Radio Corp. of America, 306 U.S. 86,
94 (1939), the Court held patentable an antenna
structure based on a mathematical formula, and
observed that, “While a scientific truth, or the
mathematical expression of it, is not patentable
invention, a novel and useful structure created with
8
the aid of knowledge of scientific truth may be.” In
Parker v. Flook, 437 U.S. 584, 591 (1978), the Court
cited Funk Bros. and Mackay Radio for the analytical
requirement that, “[T]he process itself, not merely the
mathematical algorithm, must be new and useful.”
Where a particular mathematical algorithm merely
restates a scientific truth, a subject matter limitation
based on “laws of nature” makes sense.
B. Overbroad Claim Scope
A second perspective linking processes with
“abstract ideas” is based on the potential overbreadth
of such claims. This perspective arises where the
claim recites a desired effect or result, with little or
no limitation as to the mechanism for achieving that
result.
For example, the Court found claim 8 of an
invention by Samuel Morse to be unpatentable
subject matter because it claimed use of
electromagnetism to print intelligible characters at a
distance, without regard to the means by which this
could be accomplished. O’Reilly v. Morse, 56 U.S. 62,
117-120 (1853). The Court expressed its concern that
such a results-oriented claim, if allowed, would
violate a longstanding tenet of patent law “that any
one who afterwards discovered a method of
accomplishing the same object, substantially and
essentially differing from the one described, had a
right to use it.” Id. at 119. The Court in that case
could not reconcile such a broad grant with the
9
language Congress chose to use in enacting the
patent law.
Over a hundred years later, the Court revisited
O’Reilly and interim decisions in Gottschalk v.
Benson, 409 U.S. 63, 68 (1972) and was likewise
concerned about breadth, stating, “Here the ‘process’
claim is so abstract and sweeping as to cover both
known and unknown uses of the BCD to pure binary
conversion.”
C. Lack of Specificity
A third perspective has to do with vagueness
and ambiguity of claims, particularly disembodied
thoughts that are “abstract” in the sense of “an
abstract principle, which means a principle con-
sidered apart from any special purpose or practical
operation. . . .” Le Roy, 55 U.S. at 185 (Nelson, J.,
dissenting, quoting from the Lord Justice in a patent
case before the Court of Sessions in Scotland).
More recently, the Court in Benson observed that
the chemical process and physical acts involved in an
earlier case were “sufficiently definite to confine the
patent monopoly within rather definite bounds.”
Benson, 409 U.S. at 69 (distinguishing Corning v.
Burden, 56 U.S. 252 (1853)). The use of the word
“definite” twice in the same sentence suggests a focus
not only on overbreadth as noted above, but also on
lack of specificity. Concern about overbreadth of a
patent claim can indeed come from either certainty
10
that the claim covers too much subject matter or
uncertainty about the boundaries of the claim.
A process that is abstract in the sense that it
remains unformed, ill-defined, or otherwise has not
yet been reduced to reasonable certainty may well
include subject matter that is outside the boundaries
of 35 U.S.C. § 101. One of skill in the art would not be
able to determine the metes and bounds of such a
claim, and from that determine the scope of the
inventor’s exclusive right. A patent drawn on such
matter also violates various other provisions of the
patent law, most notably the requirements in 35
U.S.C. §
112 relating to written description,
enablement, best mode, and definiteness. While in
certain circumstances the question of patentable
subject matter may be the most appropriate manner
of preventing such abstract descriptions from being
awarded patent protection, in most cases the sensible
first line of defense against those should be the more
directly applicable provisions of § 112.
D. Manipulation of Intangibles
A fourth way in which processes can be “abstract”
is the one most relevant to On Time Systems and
thousands of other companies and individuals in their
daily endeavors. This fourth perspective addresses
processes that are abstract only in that they involve
manipulation of items that are not physical objects.
Often, these items are representations of real-world
things. For instance, On Time Systems has developed
software used to route airplanes to minimize fuel
11
usage. This software uses various inputs, such as
weather forecasts that predict wind speed. The
personnel of On Time Systems do not necessarily
measure wind speed directly, much less determine
the actual force at which the constituent oxygen,
nitrogen and other particles in the air strike an
airplane fuselage. In this sense the processes
developed by On Time Systems for determining
desirable airplane routes or shipbuilding task
schedules are abstract. Each such process deals
primarily with representations of real world objects –
abstractions – rather than with the real world objects
themselves.
II. MANIPULATION
OF
INTANGIBLES ALONE
IS AN INSUFFICIENT REASON TO PRE-
CLUDE PATENTABILITY
For decades, patent applicants and the U.S.
Patent and Trademark Office (“PTO”) have
sidestepped the muddiness of the “abstract” label by
arguing that their processes really are manipulating
physical objects, even when it is clear to those in the
art that such physical manifestations are not core to
the real innovation. The typical example is a patent
application related to an algorithm.3 Historically,
3 This Court has recognized that the term “algorithm” is
susceptible of various meanings and in the past has limited its
consideration to purely mathematical algorithms. See, e.g.,
Diehr, 450 U.S. at 186 n.9 (“Our previous decisions regarding
the patentability of ‘algorithms’ are necessarily limited to the
more narrow definition. . . .”). In its use in industry, “algorithm”
(Continued on following page)
12
applicants argue that their processes really are
manipulating physical objects. They assert that
computer memory is being manipulated (as it is), and
suggest that this suffices to bind the abstract idea to
a patentable process.
Avoiding the issue of abstractness in this manner
may work in individual cases, but does not lead to a
robust, generalizable solution to the issue. True, there
is some manner of physical manipulation of elements
of computer memory, and this does provide an appro-
priate basis for showing statutory subject matter. But
to argue that an algorithm is not a process that
manipulates abstract entities is to profoundly
misdescribe it. Some algorithms manipulate repre-
sentations of physical objects; others manipulate
representations that may not have direct physical
counterparts. There is no sound basis for making
patentability turn solely on whether such a physical
counterpart exists.
The prohibition against patenting laws of nature
would have appropriately prevented Isaac Newton
is used synonymously with “process” and “method” as a way
to do something. Algorithms may themselves manipulate
entities that may be abstract (e.g., an algorithm for proving
mathematical theorems) or may manipulate entities that refer
to physical objects (e.g., an algorithm for determining how to
load troops and materiel onto a fleet of cargo planes so as to
minimize the number of planes needed for a mission). In Diehr,
the Court expressly declined to pass judgment about the
patentability of algorithms that are not mere recitations of
mathematical formulas. Id.
13
from patenting the laws of motion that bear his
name. However, it is and should continue to be
possible to patent a device that uses those laws of
motion to accelerate a specific object, such as a
bowling ball, to a set speed, such as seven miles per
hour. A process for implementing such acceleration,
specific to a bowling ball, is likewise patentable, even
under the test set forth by the Federal Circuit below.
The notion that such a process is unpatentable as
usurping an idea is distinct from the issue of whether
it deals with abstract entities rather than concrete
objects. Computer algorithms are processes that just
happen to manipulate data structures instead of
bowling balls. Reliance on a statement that electrons
in a computer’s processing unit should be considered
like bowling balls leads to the correct result (i.e.,
patentable subject matter). However, such analysis
leaves unaddressed the broader question of how to
handle processes that do not have electrons or other
physical counterparts on which the applicant can rely.
The previously mentioned process for routing
airplanes to minimize fuel burn is very unlikely, at
the end of the day, to manipulate aircraft directly. At
most, perhaps a piece of paper is printed that is
presented to the pilot. The protectable innovation,
assuming that there is one, is in the development of
novel methods for producing the information that is
given to the pilot. The end result is not a deflection of
the airplane’s control surfaces. It is not the piece of
paper. It is not the movement of electrons within the
computer used to construct the flight plan. It is
information itself, pure and simple. The patent bar,
14
PTO and bench should expressly acknowledge that
manipulation of information or other abstract entities
can be as applicable to the real world as can
manipulation of physical objects. None of this Court’s
precedent precludes such recognition.
As another example, consider one of the most
important open questions in mathematics – the so-
called “Riemann hypothesis.” This hypothesis posits
certain attributes of the “zeroes” or “roots” of a
particular mathematical function, which are the
points at which the function equals zero. While the
hypothesis is entirely theoretical, the implications
regarding the distribution of prime numbers, with
corresponding ramifications on cryptography, are
profound. Since being postulated 150 years ago,
mathematicians and computer scientists have
analyzed countless zeroes of the function in question,
all suggesting that the hypothesis is true. To this day,
however, the Riemann hypothesis remains no more
than a hypothesis. From a practical perspective, if
empirical evidence suggests that the hypothesis is
true, it is irrelevant whether it is a scientific truth, as
a process that assumes it to be true might well be
extremely valuable in cryptographic applications. A
patent claim based on this conjecture could hardly be
said to usurp a scientific truth if the hypothesis has
not been proven to be true (and may subsequently
turn out to have been false all along), so any assertion
of unpatentability must be based on something other
than a “law of nature” argument. There is no basis
under § 101 for precluding from patent protection a
15
cryptographic process that manipulates abstract
representations in accordance with this hypothesis.
III. THE FEDERAL CIRCUIT’S STANDARD IS
CONTRARY TO CONGRESSIONAL INTENT
AND THE COURT’S PRECEDENTS
Responding to the first question presented by the
Court, the “machine-or-transformation” test utterly
fails to recognize that at least some processes that
manipulate abstract entities are eligible for patent
protection, as set forth above. None of the Court’s
decisions recited above calls for such a blanket
prohibition whenever a claimed process operates on
things that are not physical.
Congress has been careful to draft into the patent
law a highly inclusive description of patentable
subject matter in § 101, while at the same time
providing a number of filters in other sections to
ensure that inappropriate subject matter does not get
the benefit of patent protection. Sections 102 and 103
of the statute, both styled as “Conditions for
patentability . . . ” in their titles, protect against
granting patents where prior work is the same as, or
makes obvious, a newly claimed invention. Section
112 prevents vague and undeveloped notions from
being conferred patent rights, requiring that a
specification “contain a written description of the
invention, and of the manner and process of making
and using it, in such full, clear, concise and exact
terms as to enable any person skilled in the art . . . to
16
make and use the same. . . .”4 Sections 302 and 311
permit the public to request ex parte and inter partes
reexamination of a patent that may have been
improvidently granted. Section 101, in contrast,
provides language that can only be read as broad and
permissive rather than limiting. As noted by this
court in Diamond v. Chakrabarty, 447 U.S. 303, 308
(1980), in choosing expansive terms for §
101,
“modified by the comprehensive ‘any,’ Congress
plainly contemplated that the patent laws be given
wide scope.” Congressional intent would hardly be
served by foreclosing protection for processes that
operate on intangibles, which are now such an
important component of our industrial base.
----------------- ♦ -----------------
4 In Tilghman v. Proctor, 102 U.S. 707, 727-728 (1880), the
Court analyzed the scope of patentability of processes and
quoted from O’Reilly, 56 U.S. 119 to establish that an inventor
deserves a patent
[P]rovided he specifies the means he uses in a manner
so full and exact that any one skilled in the science to
which it appertains can, by using the means he
specifies, without any addition to or subtraction from
them, produce precisely the result he describes. And if
this cannot be done by the means he describes, the
patent is void.
O’Reilly, 56 U.S. 119. The Court in Tilghman held that such
analysis (which would be § 112 analysis under today’s patent
law), “affords the key to almost every case that can arise.” 102
U.S. at 728.
17
CONCLUSION
A process that is “abstract” because it does little
more than recite a law of nature is qualitatively
distinct from a process that is “abstract” because it
manipulates non-concrete entities. As evidenced by
the fact that a large portion of the world’s industrial
product is now comprised of intangible assets as
opposed to material ones, modern society considers
these non-physical objects to be just as “real” as their
concrete counterparts. A new organism’s genetic code
is as real as (and in a philosophical sense in-
distinguishable from) the organism itself. A digital
circuit is a digital circuit, whether expressed as a
Boolean truth table, a state diagram, or a schematic
of interconnected electronic components. Nothing in
§
101 or in this Court’s precedents calls for a
talismanic requirement that a process, in order to be
patentable, must be tied to a particular machine or
transform a particular article into a different state or
thing. The evolution of science and technology
requires us to recognize that manipulations of
representations are fully within the scope of
patentable subject matter.
The Federal Circuit erred in asserting that the
“machine-or-transformation” test is the exclusive
analytical tool to be used to determine whether a
process claim recites patentable subject matter. The
Court should reject the narrow standard asserted
below, and at the same time remain vigilant against
endorsing any limitations that might have similar
harmful effects. Some claims that are characterized
18
as “abstract” are properly excluded from
patentability, but others clearly should not be.
Specifically, the mere fact that a claimed process
manipulates abstract entities should not be sufficient
reason to consider it nonstatutory subject matter for
patenting.
Respectfully submitted,
STUART P. MEYER
Counsel of Record
TYLER A. BAKER
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
(650) 988-8500
Counsel for Amicus Curiae