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Process

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Definitions Edit

Biometrics Edit

The distinguishing characteristics are extracted from the raw biometric sample and processed into a biometric identifier record (sometimes called biometric sample or biometric template).

Business Edit

A process is

[r]elated business activities performed to produce an end product or provide a business service. A process has a specific beginning and an end point marked by the delivery or a product of output.[1]

General Edit

A process is

any activity or group of activities that takes an input, adds value to it, and results in an output.[2]

Preservation Edit

Process (noun) is:

[a] continuous and regular action or succession of actions occurring or performed in a definite manner, and having a particular result or outcome; a sustained operation or series of operations.[3]

Process (verb) is:

to register or interpret (information, data, etc.); computing to operate on (data) by means of a program.[4]

U.S. patent law Edit

Definition

Under 35 U.S.C. §100(b), a process is defined as a:

process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

The term "process" was written into the statute as a substitute for the term "art."[5] In turn, the term "art" was historically considered anything that did not fit into one of the other categories, another very broad definition.[6]

For more than a century, the U.S. Supreme Court has used essentially the same formulation to define a patent-eligible “process.” The Court has stated that "[a] process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing."[7]

Historical development

The term "process" and its statutory precursor, "art," have historically been understood as limited to technological and industrial methods. The 1790 Patent Act was entitled “An Act to Promote the Progress of Useful Arts,” as was the 1793 Patent Act and subsequent statutes.[8] In eighteenth century usage, “useful arts” referred to the activities of skilled artisans and workers, especially in the fields of manufacturing and engineering, and stood in juxtaposition to the “liberal” and “fine” arts.[9]

Noah Webster’s first American dictionary, for example, defined “art” as “[t]he disposition or modification of things by human skill, to answer the purpose intended,” such as “the art of building or engraving.”[10] Consistent with Webster’s definition, numerous writings at the time used the phrase “useful arts” to refer to manufacturing processes and other applied trades.[11]

The drafters of the early patent statutes and other influential figures in early patent law sometimes contrasted the useful arts with the field of general knowledge and learning, which at the time was known as “science.”[12] Similarly, Thomas Jefferson described two “inventions” patented in England — an iron bridge and steam power — as falling within the field of “arts,” while describing “science” as encompassing more general fields of knowledge.[13]

Notably, the fields of pure finance and business, unconnected to technology or industry, were viewed as falling within the “sciences,” but not within the “useful arts.” In a discussion of progress in industrial fields as well as the surrounding political and economic system, Tench Coxe described “the mechanical and chemical branches” as separate from “the system of labor and political economy.”[14] He also noted that foreign investors were now comfortable investing in the “manufactures and the useful arts,” just as they had long invested in the realms of “commerce, navigation, stocks, banks and insurance companies.” [15] Similarly, Alexander Hamilton distinguished in The Federalist No. 8 between “the arts of industry, and the science of finance.”[16] In sum, because the initial patent statutes were intended to foster the “useful arts,” they were directed to technological and industrial inventions, as opposed to fields of purely human activity — including financial and economic activity unconnected to technology — which fell within the sciences or liberal arts.[17]

Early American patent laws, including the 1790 and 1793 Patent Acts, were enacted against the backdrop of the English patent system and borrowed extensively from its principles and practice.[18] The pertinent terms of the English Statute of Monopolies authorized patents only for the “working or making of any manner of new manufactures within this realm.” That provision left no room in English practice for patents on methods of organizing human activity. To the extent that process patents were granted in England in the late eighteenth century — the permissibility of process patents under the Statute of Monopolies was an unsettled question — they overwhelmingly involved manufacturing processes.

In accordance with the established understanding of the term “useful art” as limited to technological processes, courts prior to 1952 rejected efforts to obtain or enforce patents on an “art” of organizing human activity or business, when that art was unconnected to any specific apparatus or industrial process.[19]

The U.S. Supreme Court repeatedly expressed a similar understanding. In 1876, the Court defined “an art” “[i]n the language of the patent law” as “an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.”[20] The Court subsequently clarified that the operation of particular machines and the generation of useful mechanical results were also patent-eligible processes, quoting a treatise for the proposition that “an art cannot be practised except by means of physical agents, through which the force is brought in contact with or directed toward its object.”[21]The Court’s early interpretation of the phrase “new and useful art” in the patent statute thus reflected its understanding that “art” had a practical, technological scope.

In Diamond v. Diehr[22] the Court “determine[d] [the] meaning” of the term “process” in Section 101, by canvassing the Court’s historical understanding of that term and its statutory precursor, “art.” The Court observed that, “[a]lthough the term ‘process’ was not added to 35 U.S.C. §101 until 1952, a process has historically enjoyed patent protection because it was considered a form of ‘art’ as that term was used in the 1793 Act.”[23] For that reason, the Court explained, “[a]nalysis of the eligibility of a claim of patent protection for a ‘process’ did not change with the addition of that term to §101.”[24] The Court summed up its longstanding construction as follows: “Transformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.”[25] Such “[i]ndustrial processes,” the Court concluded, “are the types which have historically been eligible to receive the protection of our patent laws.”[26]

Exceptions

"[A] series of steps is a 'process' within the meaning of §101 unless it falls within a judicially determined category of nonstatutory subject matter exceptions."[27] The U.S. Supreme Court has held that a claim is not a patent-eligible “process” if it claims “laws of nature, natural phenomena, [or] abstract ideas.”[28] Such fundamental principles are “part of the storehouse of knowledge of all men . . . free to all men and reserved exclusively to none.”[29] “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”[30]

References Edit

  1. California Office of Systems Integration, Definitions (full-text).
  2. Newfoundland-Labrador, Office of the Chief Information Officer, Information Management and Information Protection Glossary of Terms (full-text).
  3. NDSA Glossary.
  4. Id.
  5. In re Schrader, 22 F.3d 290, 295 (Fed. Cir. 1994). Congress first added the phrase “new and useful process” to Section 101 in the 1952 recodification of the patent laws, substituting it for “new and useful art.” The term “art” had appeared in the Act of April 10, 1790 (1790 Patent Act), ch. 7, 1 Stat. 110; in the 1793 Patent Act, which encompassed “any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement [thereof],” 1793 Patent Act § 1, 1 Stat. 319; and in every subsequent patent statute until 1952. As used in those statutes, “art” was construed to be “practically synonymous with process or method.” S. Rep. No. 1979, 82d Cong., 2d Sess. 5 (1952); see, e.g., The Telephone Cases, 126 U.S. 1, 533 (1888); Corning v. Burden, 56 U.S. (15 How.) at 267; cf. 35 U.S.C. §100(b) (“process” means “process, art or method”).
  6. Jacobs v. Baker, 74 U.S. 295, 298 (1868).
  7. Cochrane v. Deener, 94 U.S. 780-88 (1877).
  8. See Robert I. Coulter, "The Field of the Statutory Useful Arts: Part II," 34 J. Pat. Off. Soc’y 487, 490 (1952) (Coulter); see also Act of July 4, 1836, ch. 357, 5 Stat. 117.
  9. See Coulter, at 493-500; id. at 498 (the “fundamental attribute of the useful arts” was that they involved “controlling the forces and materials of nature and putting them to work in a practical way for utilitarian ends serving mankind’s physical welfare”).
  10. 1 Noah Webster, "An American Dictionary of the English Language" (1828) (Webster). Webster appended the following comment: “Arts are divided into useful or mechanic, and liberal or polite. The mechanic arts are those in which the hands and body are more concerned than the mind; as in making clothes, and utensils. These arts are called trades. The liberal or polite arts are those in which the mind or imagination is chiefly concerned; as poetry, music and painting.” Id.
  11. See, e.g., Daniel Defoe, A General History of Discoveries and Improvements in Useful Arts (1727) (providing history of technological developments); Tench Coxe, An Address to an Assembly of the Friends of American Manufactures 17 (1787) (describing manufactured goods and processes as “useful arts”); id. at 18 (describing progress in the “useful arts” as having produced improvements in various manufactures, from ships to whips to watches); George Logan, A Letter to the Citizens of Pennsylvania, on the Necessity of Promoting Agriculture, Manufactures, and the Useful Arts 12-13 (1800) (referring to manufacturing processes as “useful arts,” and emphasizing the relationship of a country’s prosperity to its progress in the useful arts); W. Kenrick, An Address to the Artists and Manufacturers of Great Britain 21-38 (1774) (contrasting the “useful arts” with the “polite arts”).
  12. The useful “arts” are the domain of patent law, while the promotion of “science” — general knowledge and learning — is the constitutional object of copyright law. See Eldred v. Ashcroft, 537 U.S. 186, 192-93 (2003); H.R. Rep. No. 1923, 82d Cong., 2d Sess. 4 (1952); Karl B. Lutz, "Patents and Science: A Clarification of the Patent Clause of the U.S. Constitution," 18 Geo. Wash. L. Rev. 50, 51 (1949) (Lutz). See, e.g., Arthur H. Seidel, "The Constitution and a Standard of Patentability," 48 J. Pat. Off. Soc’y 5, 11-12 & n.14 (1966) (Seidel) (citing contemporaneous editions of Samuel Johnson’s A Dictionary of the English Language); Johnson’s Dictionary of the English Language, in Miniature 192 (Joseph Hamilton ed., C. Whittingham 1818). Tench Coxe, an early proponent of manufacturing, described as separate fields the “useful arts and manufactures” and the “sciences and the fine arts.” See A Statement of the Arts and Manufactures of the United States of America for the Year 1810, at xlix (1814) (Coxe); see also Webster, “art.”
  13. 14 The Papers of Thomas Jefferson 697-99 (Julian P. Boyd ed., Princeton University Press 1958) (letter to Joseph Willard, Mar. 24, 1789).
  14. Coxe, at l.
  15. Id.
  16. The Federalist No. 8, at 69 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  17. See Lutz, at 54 (“The term ‘useful arts,’ as used in the Constitution and in the titles of the patent statutes is best represented in modern language by the word ‘technology.’”); see also Coulter, at 499 (“‘useful arts’ must be understoodto include not only [contemporaneous] industrial and manufacturing arts,” but also innovations in other evolving “technological fields”); Paulik v. Rizkalla, 760 F.2d 1270, 1276 (Fed. Cir. 1985) (en banc) (“The exclusive right, constitutionally derived, was for the national purpose of advancing the useful arts — the process today called technological innovation.”).
  18. See Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 18 (1829) (Story, J.); Graham v. John Deere Co., 383 U.S. 1, 5 (1966).
  19. See, e.g., Hotel Sec. Checking Co. v. Lorraine Co., 160 F. 467, 469 (2d Cir. 1908) (“A system of transacting business disconnected from the means for carrying out the system is not, within the most liberal interpretation of the term, an art.”); see also, e.g., In re Patton, 127 F.2d 324, 327-28 (C.C.P.A. 1942).
  20. Cochrane, 94 U.S. at 788.
  21. See Expanded Metal Co. v. Bradford, 214 U.S. 366, 383, 385-86 (1909) (quoting 1 William C. Robinson, The Law of Patents for Useful Inventions § 167, at 250 (1890)); The Telephone Cases, 126 U.S. at 533-37 (1888).
  22. 450 U.S. at 182.
  23. Id.
  24. Id. at 184.
  25. Id. (citations omitted); see, e.g., Parker v. Flook, 437 U.S. 584, 588 n.9 (1978); Cochrane v. Deener, 94 U.S. at 788.
  26. Diamond v. Diehr, 450 U.S. at 184.
  27. Ex Parte Murray, 9 U.S.P.Q.2d (BNA) 1819, 1988 WL 252338, at *2 (Bd. Pat. App. & Interf. 1988).
  28. Diamond v. Diehr, 450 U.S. 175, 185 (1981) (citing Parker v. Flook, 437 U.S. 584, 589 (1978) and Gottschalk v. Benson, 409 U.S. 63, 67 (1972)).
  29. Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948); see also LeRoy v. Tatham, 55 U.S. (14 How.) 156, 175 (1852) (“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.”).
  30. Benson, 409 U.S. at 67; see also In re Comiskey, 499 F.3d 1365, 1378-79 (Fed. Cir. 2007) (holding that “mental processes,” “processes of human thinking,” and “systems that depend for their operation on human intelligence alone” are not patent-eligible subject matter under Benson).

See also Edit

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