My objective is to focus on character development, specifically how an author uses physical features, as for example facial features, to bring a character or event to life and how by doing this she brings me into her world. I have chosen two works each related to Virginia Woolf: Carlyle’s House and Other Sketches (1909) and Night and Day (1919). Carlyle’s House is a monograph in a form critiqued by David Bradshaw and with a forward by Doris Lessing, published by Hesperus in 2003. Lessing, the well known author and Nobel Laureate provides an incisive comment on Woolf’s early writing and describes the work as:

 

            “These pieces are like five-finger exercises for future excellence. Not that they are negligible, being lively, and with the direct and sometimes brutal observations, the discriminations, the fastidious judgment one expects from her…”

 

David Bradshaw MA, D.Phil., FEA is well-known, as Reader in English Literature at Oxford University specializing in late nineteenth and early Twentieth Century literature. According to his resume his field of research is Modernism particularly the works of Virginia Woolf. 

 

The sketches allow us to analyze Woolf’s craft during the year 1909, two years after she began her first novel and half-dozen years before it was published. She was 27 years old and still an apprentice, but one who knew where she was headed and what habits she would maintain on her journey. Bradshaw quotes a passage from her later autobiographical work the Passionate Apprentice: The Early Journals, 1897-1909:

 

            “…I wish for the sake of this book that I had anything more brightly coloured & picturesque to write here; it seems to me that all my events have been of the same temperate rather cold hued description; I haven’t had to use many superlatives. I have sketched faint outlines with a pencil. But the only use of the book is that it shall serve for a sketch book; as an artist fills his pages with scraps & fragment, studies in drapery-legs, arms & noses-useful to him no doubt, but no meaning to anyone else-so I…take up my pen & trace here whatever shapes I happen to have in my head…It is an exercise-training for eye & hand…”

 

            Below I refer to passages from Carlyle’s House, either those authored by Lessing, Bradshaw, or Woolf herself as examples of where this habit plays out in the work. After reading the sketches, I became curious to read how her early “…training for eye & hand…” manifested in a later work and examined Night and Day, (1919) Virginia Woolf's second novel written a decade after Carlyle’s House. I observed that with one small exception Carlyle’s House only treats the features of women. In Night and Day she ventures into the descriptions of men as well. Below, I draw on further examples in this second work, which provided material for the second reading requirement in January.

 

            In the first of the Carlyle’s House sketches, she records in her journal a visit to the famous poet’s home, a place she had visited on several occasions, once with her father and again with her sister.  She observes a portrait of Jane Carlyle the late wife of Thomas Carlyle, and writes:

 

                        “There were portraits of Mrs. Carlyle which seemed to look out quizzically upon strangers as though she asked what they really found to look at…”

 

In this instance, I and I assume other readers of the passage know quite well the look of “…quizzically upon strangers…” that Woolf observes in the visage. In this case it squares with the common experience of one suddenly meeting a stranger in a private part of one’s home, and perhaps where the stranger may not be openly welcome. But, Woolf does not stop there, she continues with a more precise examination of Mrs. Carlyle’s countenance:

 

                        “Her eyes droop in the pictures, and have a peculiar expression, of humour and melancholy lying dormant, which produces this quizzical look that I speak of; at any moment they might flash with passion, or kindle into tenderness. I think that in her life the expression must have been one of mockery for the most part, with a background of pathos; an unhappy face in spite of the brilliant eyes; the late photographs, which exaggerate the hollow of the cheeks, and the length of the upper lip, are horrid. The eyes are the only parts with warmth or depth in them: the rest is granulated skin tight stretched over a skull.”  

 

Having attended viewings of many deceased lying still in their coffins, I am struck by the accuracy of her image evoked by her metaphor “granulated skin tight stretched over a skull”. Although the eyes may shine bright, Mrs. Carlyle is dead, indeed, and, in some ways so is the home but a remnant of the poet’s past.

 

The second essay entitled Miss Reeves, introduces us to Amber Reeves a mid to late 19^th Century advocate of women’s causes and also a close friend of H.G. Wells. Woolf writes in the journal that she met Reeves at dinner the night before the entry:

 

“She has dark hair, an oval face, with a singular small mouth: a line is penciled on her upper lip. She reminds me of the girl whose mother was a snake. There is something of the snake in her. Her eyes are not large, but very bright, hazel colour. She always leans forward, as though to take flight; her whole figure and pose indicating an ardent spirit. When she is silent, she thinks-her eyes intent on one spot. But she talks almost incessantly launching herself with the greatest ease-but says nothing commonplace.”

 

Quoting one of Reeves fellow students, Bradshaw writes in his critique of the essay that Reeves was “intellect personified”. Woolf, according to my sensibilities captures a snap shot skillfully weaving in the image of a snake, eye having certain features, leaning forward, all to impose “an ardent figure”. This is not the description of a benign, dull woman, but one aware of her surroundings at every instant in time.

 

In the third essay, Cambridge, Woolf documents her visit with Sir George Darwin (second son of Charles Darwin) and his family, at the Darwin House which today is part of Darwin College. Woolf tells us that Sir Darwin:

 

 “…must have known great men, and who is at work always upon great problems, should have nothing distinguishable or remarkable about him.”

 

Later she describes Darwin, who died three years later, as:

 

            “…some elderly but wiry grey terrier, with short legs, and choleric eyes, rather watering at the corners.”

 

In this description, Woolf confirms the image set up earlier about having “nothing distinguishable or remarkable about him”.

 

The next essay entitled Hampstead has only two references to facial features and they each relate to Miss Margaret Davies a guest at Hampstead, a reference to a home in a small English village with the same name.

 

Davies is described in comparison to other guests:

 

“ … from a sterner stock. Her features are sharper, her eyes burn brighter; once she must have had something of the beauty of a delicate Greek head. Now being also past forty years of age, she has the same look of having passed a strenuous life in toil of some kind for others.  

 

Woolf continues by then drawing the features referred to in speculating about the character:

 

“Women who have worked but have not married come to have a particular look; refinement, without sex; tending to be austere. Miss Davies, it is clear, has far less tolerance than her friend; and has done what she has done through the force of conviction. She has organized a great co-operative movement in the North, Her eyes have a way of growing dark, as though clouds crossed them, when she is in earnest.”

 

            Unlike her other descriptions in the sketches, here the specification for the “…the same look of…” and “…particular look…” seems to be missing. I cannot logically or emotionally align the passage “…sharper, her eyes burn brighter; once she must have had something of the beauty of a delicate Greek head…” with what evaluation she wishes us to draw. Nonetheless, we observe Woolf using the technique of equating physical features with a behavioral feature that manifests in an enduring character, habit, passion or simply an idiosyncrasy.

 

 

In A Modern Salon, she sets out to describe Lady Ottoline Morrell (1873-1938) who became well known for her Thursday soirees in Bedford Square where authors and artists were invited to her home. She herself was neither author nor artist, and Woolf records in her journal:

 

“Like other people who are passive rather than active, she is very careful and elaborate in her surroundings. It seems that they too play a part.” …She is curiously passive, even in her expression; and the pallor of her cheeks, the clean cutting of her features, the way she draws her head back and she looks at you blankly give her the appearance of a cast from some marble Medusa.”

 

            I have a small replica of Cellini’s Perseus holding the decapitated head of Medusa and visualize one possible description—a gruesome one. So, I think that Woolf likely had in mind the Medusa Rondanini, regarded as the best late Roman marble copy of the head and considered more human-like and archetypically  beautiful than Cellini’s no less magnificant work of art, albeit grotesque portrayal of fate.

 

In Jews, Woolf considers Mrs. Loeb, a woman caught up in the throes of divorce court. This piece is put forth by both Lessing and Bradshaw as evidence of Woolf’s tendency towards semetic prejudice  At page 40, Bradshaw writes: “Apart from the odd passing slur in her earlier journals (citation ommited), Jews’ from now on, will bear the doubtful distinction of being Woolf’s first significant anti-Semitic smear.” Woolf”s (neé Stephen) husband was Jewish, which seems to raise all sorts of questions about the evaluation, however none pertinent here. Bradshaw figures that Mrs. Loeb, in the essay is Annis Loeb, widow of Siegmund Loeb a German Jew from Franfurt to “purse his business interests”.

 

Contrary to Woolf’s delicate pen-like rendering of her previous female subjects, she leaves nothing to the imagination in decribing Mrs. Leob with a rather heavy chalk lined:

 

“She is a fat skinned, with drooping eyes, and tumbled hair.”

 

The balance of Woolf’s characterization of the woman is less than flattering, from the food she served, “…swam in oil and was nasty” to “…a shrewd woman of business…moving in a circle of city people; ‘young people’ tickle her course palate…she wishes to be popular, and is perhaps, kind, in her vulgar way, ostentatiously kind to poor relations…very little disguised, and very unpleasant.”

 

            Putting aside the personal animosity Woolf may have felt for Loeb, reasons she personally and objectively justified or those of shear bigotry, she does paint a picture of a woman having physical features that square with an unflatering life style. Again, we observe how Woolf skillfully uses one’s physical atributes to draw us into a framework of character and behavior.

 

            In Divorce Courts, Woolf attends the infamous trial between Alice Mary Fearnley-Wittingstall and the Reverend Herbert Oakes Fearnley-Wittingstall, where the wife petitioned the court for a legal separation. In this essay there is only one noteworthy reference when Woolf writes in reference to the Mrs. Fearnley-Wittingstall,

 

“She had a bold, course face, strained with the tensions of brazening it out before the world. It was old and joyless; but perhaps she was not forty.”

 

I note that her association of features in each of the sketches is one of  either a thing, state, such as a place, or human quality, or event. Here, Woolf artfully aligns a human quality one of emotional condition as lining the face, with the very proceedings. Anyone having to attend such an event would  recognize the metaphor. Having attended many divorce proceedings myself, (not my own thankfully), I think that I know well the mold the author’s casts the subject.

 

Turning now to Night and Day, (1919) a novel Virginia Woolf's authored a decade after the Carlyle’ House sketches, she takes us into the lives of friends, Katharine Hilbery, Ralph Denham and Mary Datchet. The novel uses a mixture of dialogue and description in dealing with not only ordinary lives, but women's suffrage. The book amplifies Woolf’s early use of anatomical description to complement character, scene and action. She expands on the use of Carlyle’ House sketches, both in the draft of longer passages and perhaps yielding richer embroidery with which she threads her characters. Essentially, a stronger linkage also exists between the feature being described and the metaphor for which it stands. For example:

 

"With the omnibuses and cabs still running in his head, and his body still tingling with his quick walk along the streets and in and out of traffic and foot-passengers, this drawing-room seemed very remote and still; and the faces of the elderly people were mellowed, at some distance from each other, and had a bloom on them owing to the fact that the air in the drawing-room was thickened by blue grains of mist. She could see that he was nervous; one would expect a bony young man with his face slightly reddened by the wind, and his hair not altogether smooth, to be nervous in such a party. Further, he probably disliked this kind of thing, and had come out of curiosity, or because her father had invited him--anyhow, he would not be easily combined with the rest.”

 

In this passage the author captures the image of a hurried young man attending a soiree in terms of his perception of the faces of the elderly men, “… the faces of the elderly people were mellowed, at some distance from each other, and had a bloom on them…”. This describes the sense I certainly experience after physical exertion, probably caused by blood rushing to my head. It often seems that every thing is at a distance. 

 

Another example below,…” a habit of moving his head hither and thither very quickly without altering the position of his large and rather corpulent body…” describes an elderly man while creating the image of a grandfather clock, which seems to not only describe the static features of the individual, such as the framework or casing of a clock, but adds a dynamic in the form of pendulum-like motion:

 

“He was an elderly man, with a pair of oval, hazel eyes which were rather bright for his time of life, and relieved the heaviness of his face. He played constantly with a little green stone attached to his watch-chain, thus displaying long and very sensitive fingers, and had a habit of moving his head hither and thither very quickly without altering the position of his large and rather corpulent body, so that he seemed to be providing himself incessantly with food for amusement and reflection with the least possible expenditure of energy.”

 

In yet another example, she uses a man’s physical description to keep the reader’s mind moving forward in time. Her earlier Carlyle’s House essays did not seem to enjoy the added dimension of likening the features of an individual to some external physical phenomenon. In one instance with the image of “…deeply running tide of red blood” and in another instance “…slight vibrating or creaking sound in it.” Each of these metaphors draws on natural physical entities.

 

“He had a singular face a face built for swiftness and decision rather than for massive contemplation; the forehead broad, the nose long and formidable, the lips clean-shaven and at once dogged and sensitive, the cheeks lean, with a deeply running tide of red blood in them. His eyes, expressive now of the usual masculine impersonality and authority, might reveal more subtle emotions under favorable circumstances, for they were large, and of a clear, brown color; they seemed unexpectedly to hesitate and speculate; but Katharine only looked at him to wonder whether his face would not have come nearer the standard of her dead heroes if it had been adorned with side-whiskers. In his spare build and thin, though healthy, cheeks, she saw tokens of an angular and acrid soul. His voice, she noticed, had a slight vibrating or creaking sound in it, as he laid down the manuscript …”

 

In her passage,”…his spare build and thin, though healthy, cheeks, she saw tokens of an angular and acrid soul…”, delve into not only the observable world, but the man's character in the spiritual world.

 

What follows are three excerpts that serve as examples of the skill with which Woolf  animates her characters, not through behavioral features, but clear description base on physical features: 

 

“She was a remarkable-looking woman, well advanced in the sixties, but owing to the lightness of her frame and the brightness of her eyes she seemed to have been wafted over the surface of the years without taking much harm in the passage. Her face was shrunken and aquiline, but any hint of sharpness was dispelled by the large blue eyes, at once sagacious and innocent, which seemed to regard the world with an enormous desire that it should behave itself nobly, and an entire confidence that it could do so, if it would only take the pains.”

 

"… Denham found himself looked down upon by the eyes of the great poet, Richard Alardyce, and suffered a little shock which would have led him, had he been wearing a hat, to remove it. The eyes looked at him out of the mellow pinks and yellows of the paint with divine friendliness, which embraced him, and passed on to contemplate the entire world. The paint had so faded that very little but the beautiful large eyes were left, dark in the surrounding dimness.”

 

“Although he was still under thirty, this forecasting habit had marked two semicircular lines above his eyebrows, which threatened, at this moment, to crease into their wonted shapes. But instead of settling down to think, he rose, took a small piece of cardboard marked in large letters with the word OUT, and hung it upon the handle of his door. This done, he sharpened a pencil, lit a reading-lamp and opened his book.”

 

In Night and Day I observed that the greater attention to physical descriptions in rounding out the characters occurred in the early stages of the 442 page book. Thereafter the author depended less on references to “eyes, nose, or mouth”, but resorted to words such as smile, frown, that suggest behavioral rather than physical attributes. In each case these devises carry forward the story and its characters.

In conclusion, neither story is about a cultural experience I can identify with, but Woolf nonetheless balances her perspective with that of the reader, so in each case she skillfully puts her world at my disposal. I find that Woolf impliedly knows that the real world contains only three entities: physical things having tangible and intangible existance, states of affairs, and events. In her descriptions she seems to draw on one’s physical countance to make connections to the real world, to everyman’s world. Her artful use of physical features imparts the quality of authenticity in emotions, it fills in the structure of the world she creates for the reader, and adds an energy between and among the people, things, time and events that fill her pages.

 A THEORY OF COPYRIGHT PART 1

 

 

The objects of our creative efforts extend to as far as we dare to venture. Our imagination serves as the boundary, otherwise no bounds exist in the realm of the mind—except perhaps at those folds where we may be gripped by fear. Seneca says, “Nothing is terrible in things except fear itself”. We should remember that the mediums through which we express our soul are not to be feared, but sanctified. Some ideas may be dangerous, as they might be for those who live in the dangerous corners of the world. However, most forms of expression are politically benign. After all we mostly express ourselves simply to get from one end of the day to the other; sometimes verbally, but also in other ways. 

 

Someone preparing a meal experiments with new tastes, new aromas or new presentations. They give meaning to the concept expression. We write a letter drawing upon experience and language to console a friend in a time of personal loss. We listen, and advise a child or a parent in a way that gets to the heart of matters, and gets them to see the problem. We involve ourselves in local government or our church and seek out solutions to a problem that touches our neighbors.  Problem solving in general need not follow old recipes, but always has the potential for novelty, where the old solutions do not yield the requisite outcomes. In this practice of expressing ourselves, we acquire spiritual riches and come closer to finding meaning.

 

Patent and copyright law may protect the manner in which we chose to express our creative efforts and our deepest sentiments. But, protection must always remain subsidiary to the preeminent creative act, without which we would lose all meaningful expression of our humanity. This admonition does not depreciate the importance of legal protections it merely serves to put it into its proper context.

 

Many of our ideas and feelings are conveyed in the form of language of one kind or another. We may put pen to paper and write a poem or short story. Others of us may use the language of music to play an instrument or sing and explore new and different renditions based on chord selection, syncopation, timing and emphasis. Regardless what our mode of expression copyright laws will protect those that are recorded on tangible medium from being copied. [1] Copyright law protects this book the world over. [2] It cannot be copied without permission. The copyright laws protect our writings, but also protect artwork, sculpture and in some cases software. Each area of copyright covers a wide berth of legal principles and applications. The combination is not easily understood if we focus too closely on the technical requirements and not on the substance of what we are attempting to accomplish.

 

Protection under the copyright law extends to "original works of authorship" that are fixed in a tangible form, what I refer to as the expressive object.[3]  The right comes into existence the moment that the form fixes in the medium of the expression object. "Original" under copyright law means that the author or artist produced the work by his or her own effort and not by copying a preexisting work.

 

Clearly, one cannot make a copy of a book, work of art or even a software program without permission of the copyright holder.  However, the law has also extended copyright protection to extensions, derivatives, modifications or equivalents of the expressive object. These works although not identical to the original, have sufficient identity with the copyrighted original to fall within the aegis of protection. Essentially, one cannot take a well-known plot and its characters, and create another plot regardless of the originality of the new plot. But, why? Boyle, explains it this way: “It is the originality of the author, the novelty which he or she adds to the raw materials provided by culture and the common pool, which “justifies” the property right and at the same time offers a strategy for resolving the basic conceptual problem …what concept of property would allow the author to retain some property rights in the work but not others?  In the German debates, the best answer was provided by the great idealist Fichte… (who)… disaggregated the concept of property in books. The buyer gets the physical thing and the ideas contained in it. Precisely because the originality of his spirit was converted into an originality for form, the author retains the right to the form in which those ideas were expressed…” [4]

 

This concept of retaining the expressive form finds application every time an author or artist takes a plagiarist into court. Recently, owners of Margaret Mitchel’s copyrights enjoined publication of a book entitled The Wind Done Gone, by Alice Randall on the basis that it infringed the famous novel Gone With The Wind. [5] The new work chronicles the diary of a woman named Cynara, the illegitimate daughter of Planter, a plantation owner, and Mammy, a slave who cares for his children. The plaintiff's copyright infringement claim rests on the fact that the defendant's book: (1) explicitly refers to Gone With the Wind in its foreword; (2) copies core characters, character traits, and relationships from Gone With the Wind; (3) copies and summarizes famous scenes and other elements of the plot from Gone With the Wind; and (4) copies verbatim dialogues and descriptions from Gone With the Wind.

 

Randall’s publishers claimed the story was parody--one of many defenses to copyright infringement. It is true that the law protects parody. But if it were not parody then the court would have to determine if the work were a recasting, adaptation or transformation of the original work. The standard for ascertaining infringement is whether the two works are substantially similar in regards to a host of features such as the work’s characters, character traits and relationships. District Court, Pannell, J., held that: (1) the works were substantially similar; (2) that the overriding purpose of "The Wind Done Gone" was to create sequel, not parody, although book was partially transformative; and (3) the book used more of original work than necessary to obtain the effect of parody. In this instance, the court considered the tone, plot, characters, setting, mood, and pace and determined that the two work’s were sufficiently substantially similar as to warrant a preliminary injunction against publication. We learn that intellectual property represents something more than the story. In the case of literary works it represents the expression of ideas through a language, cast in a genre, that makes a story unique--that moves the story from ideas to drafts, to a plots, with characters, to emerge a literary work.

 

To understand the expressive object we should understand what constitutes a work of authorship or art? Philosophers have argued that a work of art represents both a physical thing and an aesthetic object. Others have argued that it is one but, not the other. Clearly a work of art does not embody simply a picture of something. It embodies a unique combination of facets consisting of materials, mediums, form, content, subject matter, expression and representation of forms and contents. Analogously, musical performances contain these elements. The expressive objects in such performances are extant in the musical score, the instruments and their unique tonal qualities and timbres. We might even include the manipulation of the recording medium or the concert hall that produces aural sensations and visual perceptions. We see these forms of artistic imaginations take for in everything from commercials, to the artifacts of popular and traditional culture, the MTV performances to performances at the Metropolitan Opera House. Copyright protects the entirety of these creative efforts.

 

However there was a time when protection of certain forms of art had been in doubt. A 1903 case opened the way to the modern era favoring expansion of copyright protection. The shift came in a case involving a circus poster. Justice Oliver Wendell Holmes wrote for the majority: “We shall do no more than mention the suggestion that painting and engraving unless for a mechanical end are not among the useful arts the progress of which Congress is empowered by the Constitution to promote. The Constitution does not limit the useful to that which satisfies immediately bodily needs….It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups-visible things. They seem from the testimony to have been composed from hints or descriptions drawn from life that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Valasquez or Whistler was common property because other might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which in one man’s alone. That something he may copyright unless there is a restriction in the words of the act.” [6]

 

Contrary to popular belief any potentially registrable copyright work does not have to be copyrighted to enjoy protection under US law. Registration affords proof of ownership and grants rights and privileges, such as access to federal courts to claim copyright infringement. Damages in copyright theft cases may be difficult to prove, so registration also may permit a claim for statutory damages. If the work were very valuable it would be wise to register the copyright with the U.S. Library of Congress.

 

A copyright subsists in original works of authorship in literary works, musical works, pictorial, graphic works, motion and still pictures, sound recordings and choreographic works, and derivations and compilations of these. A copyright is not the “thing”. A copyright consists of the underlying right to deal exclusively with the “thing”. Examples of items that can be copyrighted include: advertisements, instruction manuals, art work, photographs, books, sound recordings, teaching materials and computer programs.

 

The owner of a copyright has the exclusive rights to: (1) to reproduce the work; (2) to prepare derivative works; (3) to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, such as by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the work anywhere; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to publicly display the work; and (6) in the case of sound recordings, to publicly perform the work by any means.

The moment we reduce an expression to any medium capable of perception or detection, a property right issues protected by copyright. For example, radio wave broadcasts, electronic representations of e-mails, tangible report, flow charts on a blackboard, phone messages, notes on your desk, a video, a recording, a photo or portrait paintings are all automatically copyrighted. [7] For someone other than the copyright owner to use anything that has been reduced into any medium, requires permission. Keep in mind that copyrights are licensable and assignable so the owner, the creator and the possessor of the article may be different persons.

 

Statistical information, facts and numbers are not copyrightable because they are information. [8] In a similar vein are mathematical or chemical formulas. Anyone should be able to use such information and more to the point express relationships between the abstract and ideals that scientific and mathematical formulas allow. To protect this kind of information we need to look to trade secret law.

 

Copyright provides protection for the expression of an idea but not for the idea itself. For example, you might decide to do an advertisement featuring a diner setting. Copyright in that advertisement would prevent others from copying it without your permission. However, copyright in that advertisement would not prevent third parties from creating an advertisement featuring a diner setting, as long as such third parties either expressed the idea in a manner different from your expression or, if in a manner similar to yours, developed it totally independently from seeing your advertisement. Merely having access to a publication containing advertisement might negate the presumption of independent development.

 

Likewise, I can author a scientific treatise on any of a thousand subjects, but I cannot stop anyone from using the ideas, axioms, postulate, theorems, propositions, formulas, or conclusions found in the manuscript. Keep this in mind: copyright protects only the manner of an author's expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems or methods. So, a domain name, screen name or password cannot be protected by copyright. It also does not protect the way something functions--only patents can.

 

The distinction between a copyright and patent can be difficult to grasp. Indeed there have been great debates on where one ends and where the other begins. If we keep in mind that an expressive object has no causal effect upon the world, we will not confuse the two. If I invent a paperweight and place it on a piece of paper sitting on my desk, it imposes a force on the paper through its mass being acted upon by gravity. The paper remains stationary by the action and reaction of physical forces caused by gravity. If the stationery contains a message, it does not directly cause anything, regardless how moving in a literary or political sense the message might be.[9]

 

A hybrid protection referred to as a design patent protects the ornamentality of a utilitarian device. For example, designs for articles, such as car designs, wearing apparel, tool designs and household appliances and the like are not usually protected by copyright. Some countries have a classification called industrial design protection that protects the utilitarian aspect of a design form. Essentially, copyright does not protect how utilitarian device work, but protects the expressive features of such devices. However, a useful article can be copyrighted to the degree that its pictorial, graphic, or sculptural features exist independently of the utilitarian form in which they are embodied.[10]

 

 

A THEORY OF COPYRIGHT PART 2

 

Copyright does not protect the utilitarian features of an artifact expressed in a tangible medium. For instance an ash tray may have an aestetic feature such as its shape and perhaps an emblem in its well, but copyright only covers the shape and emblem aspects of the article, not its function and the accompanying features that make it an ash tray. So as previously indicated, if I explain how to make rubber, I cannot stop anyone from making or using the rubber so produced. As the Supreme Court has explained in numerous cases “ the teachings of science and the rules and methods of useful art have their final end in application and use and this application and use are what the public derive from the publication of a book which teaches them....” [1] Therefore the description of a machine design in a book secured by copyright lays no foundation for an exclusive claim to the machine itself. However, the machine’s design may be expressed in a patent, which will permit its holder to an exclusive claim to the function of the machine or its structure or both.

 

We have begun to witness erosion in the foregoing convention that utilitarian objects are not the subjects of copyright, notably where computer programs, digital protection devices and semiconductor designs are concerned.[2] Under the Copyright Act, computer programs receive copyright protection as "literary works. [3] In the case of computer programs, the law protects code to the extent it represents the non-functional components of a program. The difference lies between a human reading and copying an instruction and a machine reading and carrying out an instruction. Copyright protects the first and not the second event. Works protected by copyright include the steps a programmer employs before writing the code, such as flow charts, but also may include the very code itself.[4]  Nevertheless, because flow chart may be protected from copying does not prevent anyone from actually carrying out the procedure that the flow chart describes. A flow chart essentially addresses function, and function can only be protected under patent law, not under copyright law.

 

This fact that current copyright law protects code to the extent it represents the non-functional components of a program might someday prove a bane or boon to future biological technologists. Fundamentally, biological sequences and organic molecular sequences are one and the same. These have not been the accorded copyright protection. Genetic codes, proteomes and the like represented as language might be copyrighted, but courts have typically found that formulas such as chemical and mathematical formulas cannot be protected by copyright. The same idea would seem to apply here.

 

One can quite easily imagine that biotechnology will not always subsist in the intrinsic matter of molecules and cells, but in higher forms of expression, such as a coding language that relate directly to particular gene sequences. If sequences were embodied in a tangible medium, other than another biological medium, these kinds of expression might well be copyrightable. An analogy would be in the form of architectural drawings [5]or semiconductor designs. [6] Each of these expressions required laws specially drafted to accord a form of copyright protection that goes to the structure of the design. Prior to passage of the 1990 Architectural Works Copyright Protection Act, the law protected the architect’s plans, but not the work as fixed in the structure the plans represented. These kinds of protection are often far more effective than patents. The copyrights applicable to software currently provide protection that outlasts the useful life of most programs. If genetic sequences were copyrighted such protection would last for decades. 

 

The Copyright Act states that “[I]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”[7] Therefore, if the expression seems to provide a function, as would a switch or a dial then that expression is deemed functional and not protected by copyright laws. The same idea would hold if instead of function we were to speak of structure. Functionality and structure are subjects of patent law. This analogizes to a phenomenalist’s view of the difference between a “work of art” and the material thing upon or within which it is cast. [8]

 

The case in Lotus Development Corp. v. Borland International, Inc. dealt with the subject of distinguishing, functional purpose from expressive purpose. Such matters are far from crystal clear as evident from the decision of an equally divided Supreme Court affirming that computer programs are copyrightable to the extent that they do not contain any functional components. In the matter at hand the  “methods of operation” concerned the familiar spread sheet application.  Lotus 1-2-3 consists of a spreadsheet program that enables users to perform accounting functions electronically on a computer. Users control the program through a series of menu commands, such as "Copy," "Print," and "Quit." Lotus 1-2-3, like many computer programs, allows users to write what are called "macros" to designate a series of command choices with a single keystroke.

 

Borland did not deny that it included in its product a virtually identical copy of the words and structure of Lotus's menu command hierarchy; essentially the entire 1-2-3 menu tree. In doing so, it did not require that it also copy any of Lotus's underlying computer code. It claimed that it essentially copied the functionality.

 

The lower, trial court explored the multitude of variations on design that were possible and concluded that Lotus’s choice and arrangement of command terms, constituted copyrightable expression. However, the appeals court reversed:

 

“We think that "method of operation," as that term is used in…(The Copyright Act Sec. 102 (b)…) refers to the means by which a person operates something, whether it be a car, a food processor, or a computer. Thus a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words. Similarly, if a new method of operation is used rather than described, other people would still be free to employ or describe that method. We hold that the Lotus menu command hierarchy is an uncopyrightable "method of operation." The Lotus menu command hierarchy provides the means by which users control and operate Lotus 1-2-3. If users wish to copy material, for example, they use the "Copy" command. If users wish to print material, they use the "Print" command. Users must use the command terms to tell the computer what to do. Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3's functional capabilities...”

 

The fact that the literary aspect of computer programs can be protected by copyright, but that copyright does not protect the underlying functionality may be somewhat misleading in practice. If a computer program contains in its operative core an application that cannot be carried out in any other of steps except the steps in which it has been coded, functionality will have been largely protected. Only if the steps can be coded in another computer language, would the newly coded computer program potentially avoid the previous prototype’s copyright--and effectively carry out the same function. But, even here other tests of copyright come into consideration, that has little to do with literal copying, but copying the “look and feel” that embodies the sorts of considerations that courts weigh in any form of literary or artistic expression.

 

Also, commercial programs commonly consist of millions of lines of code. So, at the practical level one does not recode to achieve function. Licensing presents a less expensive alternative in acquiring the copyrighted version. Consequently, such efforts to recode commercially available programs simply do not occur with great frequency. For such products, copyright does act as essentially a guarantee against exclusive functionality. 

 

A more direct instance of controlling functionality through copyright can be found in cases such as Betamax.[9] In 1984 the Supreme Court agreed with Sony that its VCR did not contribute to infringement simply because VCR technology allowed home taping of television programs. But since then there has been no lack of interest in waging war against new technology that threatens the copyright monopoly.

 

In the early 1990s the Audio Home Recording Act Congress passed legislation that prohibits digital audiotape technology known as DAT from permitting copies to be made from its first generation recordings.[10] Each DAT comes with a Serial Copy Management System that prevents copies of copies and additionally requires manufacturers of the device to contribute funds in the form of royalties to record companies. The AHRA does not seem to prevent anyone with a CD ROM burner or recording system from making copies of copies, essentially again pointing out that protective legislation of the sort largely fails to deter copying.  

 

In 1998 following this line of copyright jurisprudence, Congress passed The Digital Millennium Copyright Act of 1998. The DMCA directed at least some of its effectiveness, as did the AHRA, at prohibiting the circumvention of locks to prevent data copying. This did not prevent Shawn Fanning a New Jersey college student from launching a small computer program that allowed him and his friends to swap music over the Internet. The idea had wings and in a very short time the idea was named Naptster. It was small, efficient and had phenomenal utility. As such it rapidly spread throughout the world of music enthusiasts (somewhere between 20 and 80 million users) much to the chagrin of the established recording industry. The recording industry waited about six months before it filed suit against claiming copyright infringement.

 

The ensuing court case involved the Recording Industry Association of America, as well as dozens of others who decided to chime in. Roughly one year from its incorporation the U.S. district Court for the Northern District of California issued an opinion granting the plaintiffs a preliminary injunction.[11] In February 2001, an appeals court upheld the lower court findings and conclusions.[12]

 

But, the Napster system was not dead because the system itself could not be regarded as an infringement. Only storing, copying and distributing the music could be. And, to be sure there were recordings that may not have been infringing on the system. So, in the final analysis the court required the plaintiff to identify just what recordings were being infringed. [13]

 

Enter the Pig Encoder, a technology that would permit Napster users to encrypt their files so that it would be impossible for anyone to read them and ascertain whether they were governed by a copyright. And, so it goes, where technology thus provides and thus takes away, in an ebb and flow of competing interests.

 

---

[1] Baker v. Seldon , 101 U.S. 99

[2] The Copyright Act, 17 U.S.C. sec. 902 et seq. entitled Semiconductor Chip Protection Act protects integrated circuits reproduced through mask works, which disclose the circuits themselves on something resembling a photographic negative. In a more recent development, 17 U.S.C. 1201 et seq., entitled Copyright Protection And Management Systems protects against interfering with systems that prevent unauthorized copying of digital content.

[3] 17 U.S.C. § 101  “A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result.”

[4] 17 U.S.C. § 101 (defining "literary works" as "works ... expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, phonorecords, film, tapes, disks, or cards, in which they are embodied.

[5] In 1990, Congress passed the Copyright Protection of Architectural Works Act, Title VIII of P.L. 101-650 Secs. 701-706 which amended Section 2 of the Copyright Act to add architectural works.

[6] The Semiconductor Chip Protection Act of 1984, P.L. 98-620, 17 U.S.C. Secs. 901-914.

[7] 17 U.S.C. § 102(b)

[8] Ibid 223, “The phenomenalist’s answer to the question agrees with the notion that a work of art is not physical, while rejection the Platonic conception of it as a universal entity. A work of art is a class of appearances satisfying certain requirements of coherence and comprehensiveness. Thus it is not just any perceptual object. This, strictly speaking is the work of are, or what the artist creates and exhibits in the medium of art. The phenomenalist will occasionally notice this connection of the work of art with its physical basis. But, he argues, since the physical as such is not strictly given in perception, it must not be thought of as a proper part of the work of art. However, the ambiguity of the “work of art” makes some phenomenalists hesitate about this…The presumption of a pure phenomenalism is that physical objects are themselves constructions out of sensory appearances. But, “impure” phenomenalism holds that physical objects and events are the external, imperceptible conditions of the appearances, in some sense causing their appearances. It is this notion that affiliates Beardsley’s theory with epiphenomenalism, a metaphysics that requires everything to be fundamentally physical….”

[9] Sony Corp of America v. Universal City Studios, 464 U. S. 417 (1984).

[10] The Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4248; 17 U.S.C. Sec.1001-1010

[11] A&M Records Inc. v. Napster, 114 F. supp. 2d 896(N.D. Cal.2000).

[12] Napster Inc. v. A &M Records Inc., 9^th Cir., No. 00-16401 (order entered July 28, 2000).

[13] A&M Records Inc. v. Napster Inc., Case No. C 99-05183 MHP, MDL No. C 001369 MHP (N.D. Cal., March 5, 2001).

 

To My Close Friends:

 

I woke up this morning intent on letting you all know where I stand politically (although I thought my book made it fairly clear). God knows this is not a subject to be discussed among friends or relatives, but lately I cannot reconcile what I know of many of you (that you are all honest, hard working, and descent people) with the muck that I have received via email recently. Much of the dirt has been caste against minorities in the spirit of political preferences (we cannot ignore Obama is Black and the motivation of many is to make sure he does not aspire to the presidency, either on racial grounds, qualifications or political philosophy). For those that have not contributed to my motivation this morning, I thought you should at least know where I am on the issues. Let me start this way. In the spirit of the campaign a republican friend of mine (incidentally I estimate that most of my closest friends (you all) are republicans, god bless you) sent me yet another movie of black people, this time groveling over “hand outs”. It was a parody about Obama's supposed give-a-ways according to McCain's charge of redistribution. Aside from being tasteless, (I judge political tastelessness by whether I would expose my 12-year-old grand daughter to it) it fosters the stereotype of the minority in this country. Inasmuch as 1/2 my relatives are considered minority (Hispanic, Native American), this includes my kids and grandkids, I generally find these "parodies" offensive. And, although some of my friends on this list may not agree, most of these attacks on minorities come from the political right.

 

All that aside, I do not want to give my money to government so it in turn gives it away to those not deserving either because they are lazy, rich or do not have my interests at heart. On the other hand I gladly pay a lot in taxes that go for schools, roads, national security, Medicare, and social security. To ignore what we give, what we expect and what we take from government is being intellectually dishonest. Some of us pay higher taxes and make other sacrifices so that others can live decently or that the country survives (social security, Medicare, VA, public schools, nursing homes, military service and even the Wall Street bail out). If we look around and start counting what the other guy gets we easily get annoyed so it’s best to accept the proposition, each according to his ability contributes and each according to his needs gets (this is not a Marxist proposition, but common experience, common sense and common decency as we live it in the America I know). If we did not feel this way, then we would not make the daily sacrifices we do. Some men and women go into the service (to just serve, some die or some come back wounded souls (we all know them),  while a bunch of us decide to stay home, others volunteer in community while others of us sit on our keisters, you get the idea. Each of us would have been hypocritical in accepting state education, VA benefits, or Medicare and believe that there is something wrong with the notion of the so-called common wealth. We give and we take. To get there our government instituted a progressive income tax. It has been in existence for almost 100 years (I am told Teddy Roosevelt initiated it). When Bush cut taxes for the high-income earners a few years ago we began to veer off in another direction. According to Obama he intends to right the ship (making an approximately 4% adjustment to increase taxes for those making over $250,000). Some of you may disagree, that’s cool, but here is where I am coming from.

 

The debate between presidential candidates is between tax contributions weighed in favor of the wealthy or the less wealthy (under $250,000). My grandfather was a socialist in the European tradition being from Italy in the 19th century, my father was a New Deal labor leader (progressive) and we were all either raised or lived in Bridgeport, under Jasper McCleavy of the Socialist Party governing the city from 1922 to 1952. Not surprising, under these influences, I tend to lean left (a little like religion, once you are what you are its hard to change). Depending how far from center to the right you are, some would say I was too left. Being left, socialist or progressive, I am for social welfare (i.e., Medicare, social security, right for unions to organize, organizing inner cities to vote, have safe housing, for civil rights against wire tapping, Miranda rights, sentencing fairness, civil rights for racial equality, etc.).

 

I have worked just about 1/2 of the last 50 years in industry (5 in the service), the other half on my own and most of the years in industry for some very wealthy individuals. Although they were good (reasonably honest) men (all men no women), when it came to making money for the company or lining their pockets they exceeded. The one trait that stands out: they were stingy SOBs in the American tradition of Fords, Rockefellers and Edisons. What this means is they paid themselves well, they may have paid a few top execs, they threw money in the direction of a  small number of social causes and in the direction of Congress.  From the mid 80’s on I did not work for one "man" that made less than $1,000,000 per year, in the 90’s one "man" made $65,000,000 and two others I worked for in the 00’s made upwards of $10,000,000. Here is my economic theory. Not one of the men I refer to (president of Farrel, President of Gateway, President of the Hartford, Managing partner of Duane Morris (law firm) spent one day in service of this country, for example, teaching, nursing, public defender, or military service. Two were immigrants (one was actually a WWII German soldier). All these men benefited by a country that through the hard labors, service and sacrifice of the rest of us gave them a platform to considerable wealth. Each of these individuals benefited by a work force that was educated by a system paid for by us, (including my grandparents, my parents); benefited by a standard of living that has been achieved by a work force that raised our standard of living because we paid workers a decent wage (after union leaders such as my father spent entire lives for the cause of labor (strikes, assaults on personal safety) but for which (with the a few exceptions, crooks and national office holders) they received a pay check for eight hours and nothing extra for the hours spent in the union hall); and a society which is rich in personal freedoms gained through a war against slavery that saw 618,000 deaths and another 41 deaths during the 60’s civil rights movement (movement, voting, jobs, education). And, on a more personal level by those that have given their time and in some cases lives in service to the country, many of our relatives serviced in the highest traditions (my son, son-in-law, daughter-in-law, my five uncles (one of whom died of gassing) and four cousins (one died in battle) (and I) all served in the military). To think for one moment that these corporate officers earn the money they do solely from their extraordinary effort, singularly, absent outside social forces, is simply not true. To at least adjust for the inequity, we have a progressive tax system, so those that earn more pay more (if one wants  to use the charged term “redistribution”, “socialism”, so be it!).

 

So, yes they make good money, but let’s see what taxes they pay (I went to an Internet calculator to do this, this is adjusted gross income for a married couple): $10,000,000, taxes $3,471,575, $1,000,000, taxes $321,575; 250,000, taxes $61,229;  $100,000, taxes $17,688; $50,000, taxes $6,698, taxes; $25,000, taxes $2,948. To my way of thinking someone making from $250,000 to $10,000,000 still ends up making a fair amount of money each year.

 

Now, if Obama gets his way taxes will increase 4% for anyone making over $250,000. Therefore, if adjusted gross income is: $10,000,000, taxes $3,591,575; $1,000,000, taxes $334,575; $250,000 taxes $63,629. Anyone making less than $250,000 will see no increase. The adjustments range in the example above from $120,000 down to $2,000. The average salary of a Fortune 500 CEO is over 300 times the average salary of the hourly worker! This is about $3,000 per hour ($6,000,000 per year). Do you think that they can afford it?

 

Finally, you know it’s real interesting how a bunch of white fat cats just got $700,000,000,000 and no one made a movie of them, no one questions how much the individuals that will benefit by this vast sum of money, some of it my money, earned last year.

 

Enough said, enjoy the weekend, and remember to vote.

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RELIGION WHERE ART THOU(edited excerpt from a Road Once Traveled)

Joseph R. Carvalko

Copyright 2009

 

THE LONG AWAITED Christmas Eve came—long awaited that is for my grandchildren; for on this eve they would sing in the choir group for tots four through eight. The church stood large and white in the center of a medium sized New England town. I was not one of its parishioners but had been here several times to witness my cherubs sing and perform. I arrived a half-hour before the service started to insure that I had a seat with a view. The pews just behind those reserved for special guests were vacant. I had a clear vision of the altar. At the appointed time the children assembled in the front of a large hall in front of the plain protestant alter. A few moments passed as the choir director assured that everyone align for best performance. Robin was on one end and April, her older and taller sister was in the center. The group began with The First Noel. I was moved but wondered what I really believed in about this. I concluded my newfound sense of spirituality had to do with the miracle of my grandchildren rather than in some supreme being. Perhaps, the spirituality I felt stemmed from my witness of the daughters of my blood. I can believe in this self-evident thing. If that truth manifests god, so be it.  Do I need to know more? The children sang, the minister preached, the penitents prayed and dead spirits communed in this sequestered hall that celebrated the recurrence of life and death as I wandered into and out of a timeless reverie that intellectualizes what I do and do not feel about a god.

 

For hundreds of years Old World families maintained the cyclicality of the Christian faith in the Feast of the Circumcision, Ash Wednesday, Palm Sunday, All Saints Day, Christmas, and then over again. But in a place like the New World, mainly after the war, the fabric that once wove these rituals into a unified whole began fray and inevitably the last threads that held the cycle intact unraveled. Both sides of the family were Catholic. My paternal grandmother and her daughter attended church regularly. As for my immediate family, my father never went to church (or mentioned the word god) and my mother who mentions God a great deal in greeting cards, only spent Easter or Christmas there. I, on the other hand, did attend church regularly as a child, ordered to.

 

Unlike their modern counterparts, the churches of my childhood were from the Old World and another millennium, and in fealty to that origin faced eastward. Their design intentionally permitted morning’s light to enter the sacred basilica and cast God’s beam over a tiny missal we all carried. Once morning passed the vacuous hall became dark once again, foreclosing the written word, and forcing our concentration on the Rosary, where you only needed to feel the beads strung along a loop that inevitable lead you back to the beginning, the Crucifix. Candles outlined the outer aisles and served as the main source of illumination in the small vestibules, where they burned beneath the feet of some revered icon in a reminder of the duality of fire, both as a symbol of God’s kingdom and the devil’s perdition. Magnificent halls of Baroque and Classic Italian architecture where huge marbled columns lined granite aisles, down which generous, but mostly poor, humble and somber penitents marched forward and backward and toward forgiveness and ultimate salvation, in a daily struggle to be perfect and human at the same time. And, importantly here the capped channelers baptized, wedded and ultimately funeralized our ghostly spirit. We ritualized our presence on earth so we might find freedom in an after life. The altars represented the last vestige of an ancient rite, solemnized in a Latin mass for the masses whose vernacular long since diverged from any comprehension of the sacred soliloquy. My fascination with the mystery of it all consumed my quiet time, the time when I talked inside my head so only I could hear my thoughts or commune through prayer with a reticent Trinitarian God whom I would later believe dispensed justice according to an odd prescription of predestination. Or as Saint Augustine would rationalize, God may be inequitable, but certainly not unjust! History certainly has its share of intellects smitten by superstition.

 

In the nineteen forties, churches in most northeastern cities symbolized the ethnic make up of its neighborhoods. In their structure we see a reflection of the various group’s strengths, hopes and aspirations.  Where I lived, a red brick Russian Orthodox church sat on the tallest hill in the Russian enclave, a granite Slovak church, squat in the Slovak section. Saint Patrick's church presented an austere looking and overall brighter edifice than its Italian counterpart. There were two Italian churches the Holy Rosary and St. Raphael and both yellow brick. Perhaps the yellow reminded its members of Italy and its many bright pastel colored villages. The Holy Rosary, resembled a miniature of IL Duomo in Florence, it had its own golden dome. St. Raphael’s had been resurrected in the early fifties as a less ornate patrician church of solid granite floors, highly polished marble pillars, gold leafed cornices and the usual statutory assemblage of the more popular Italian saints to guide us through the ever complex human travail, safely and if not safely, spiritually.

 

In St. Raphael’s I received three of the five sacraments I could expect over my lifetime, the other two, being marriage and extreme unction.  This last one I would assiduously try to avoid. The priests conferred the outward signs of the Lord’s inner gift of Grace: Baptism, First Holy Communion and Confirmation. In this last ceremony, I knelt before and then kissed the golden ring of a corpulent bishop sitting on a gilded red velvet throne (I beamed in god’s approval). In the hallowed halls of the cross erected for the good parishioners of St. Raphael’s, I a child of seven, without sin, would feel guilt, and thence methodically recite the Confiter:

 

“I confess to almighty God, To Blessed Mary, ever Virgin, To Blessed Michael, the Archangel, To … that I have sinned exceedingly, In thought, word, and deed, Through my fault, …Therefore I beseech the Mary, ever Virgin, …Pray to the Lord, my God, for me.”

 

At seven I had already assumed that sins unknown to me consciously must nevertheless exist and I must confess them, and ask a cadre of saintly agents, whom I have never met, to intercede on my penitent behalf. Everything from how we live our lives, to how we celebrate the rituals of confession, birth and death must involve these paradoxical incorporeal and ethereal beings.  This early spiritual connection with beings I had never encountered, except buried deep within the imaginary pockets of my cerebellum, has had much to do with my sense of right and wrong, so that in my inner self, in that place of sanctified solitude, I should feel guilty, for perhaps not having a sin to report for not to have sinned could constitute a sin (the church needs to have it this way, for after all if people stopped sinning the church would go out of business and that cannot be good).  I also strangely began to look forward to a solitude that reflected the growing need to find peace at the tender age of seven. 

 

After my First Communion at the age of seven, the good nuns from St. Raphael conscripted me into altar boy service. They would teach me Charity, Faith and Grace, subjects that only metaphysicians appreciate.  But, I took my duties seriously, the first of which I learned to navigate the altar, transport the holy water, focus the candles, fan the incense, dress in the black and white clerical vestments, and to respond to the priest’s Latin liturgy. These differed for the several kinds of celebrated masses, one set of general muttering reserved for Sundays, but customized for each of the religious seasons. Another set of muttering for the common couple’s wedding and another for those of influence, funerals (the same), and so on. I say muttering, because the priest recited mass in a dead language no one understood. I muttered, too. I had to learn a dozen different stock responses to the priest's incantations.  I could not keep straight when to move the Gospel from one side of the altar to the other, or when to light the candles, or ring the bell or genuflect. In my desire to take orders perfectly, I often became befuddled and lost clarity of mind.  I could not remember the difference between the stole and the amice. I could not remember when to announce the coming of Jesus by ringing the bells and beating my chest at the same time. But, here I learned that the rituals played out in this temple, were not unlike the rituals I would later observe in all manner of institutions, the military, the corporation, the court and prison.  You must learn the language, the times you can cross from one place to another, when you are permitted to light the candles, ring the bells, when to genuflect and say may I. And, loose that habit of befuddlement. In fact the greater part of success in life depends on one’s ability to perform all manner of rituals. I found this later in the adult world of government and corporations, all in which I frequently found myself lighting candles, ringing bells, moving things from one side of the altar to the other, muttering, looking up to the idols and always, always remembering to genuflect in their presence. 

 

In 1950 after my family moved into the north end of town, a ten-cent bus ride would take me to the church to first memorize the Latin phrases, and then later to serve the mass. I saw the yellow brick convent secured behind a steel page fence, seeming to incarcerate the mother superior and her habited cadres of beatific teenaged nuns not only as a sanctuary, but also as a prison. I had the feeling of both security and suffocation, of faith and agnosticism, of hope and despair. Awed by their austerity, sanctuary, myths, miracles and intermediating Madonna, I wondered if I could ever aspire to priesthood.  I wondered if I would go to heaven. I asked the icons that lined the chapel, I beseeched the Holy Ghost, I prayed for an answer.  I wondered if I would ever memorize the solemn phrases, but eventually, the last wonder would quell in the quiet of the small dimly lit convent foyer, I finally memorized the Latin that to this day I cannot erase from my memory, even though I still don't know what it all means. It’s better left that way, but in the convent's celestial atmosphere of pedagogical insignificance, it still casts an everlasting notion of my catholicness (intended small “c”), even though I, like my parents before me, would someday only attend church occasionally for baptisms, weddings and funerals.  For nearly a year, patiently, the saintly nuns at St. Raphael's bathed my childlike mind in the sanctimony of their innocent outlook, leaving me with a residue of both veneration and dread, which to this day arouses me every time I find myself in church. In years past my heart would beat fast and my eyes would gloss over tear-like. As I now find my self in the grip of old age, I have concluded that my tears flowed because the Madonna, Mother of the World never answered. I have concluded that the idea of her represents only an image, the image of a black abyss, an abyss that delimits the beginning and the end of my life as difficult as it is to accept this thought.

 

The church shaped my outlook regarding rituals of guilt, death, and serving idols. Like all cults, the ecclesiastical order moves its novitiates from mere lambs to staunch lions for a god, his apostles, disciples, popes, cardinals, bishops, monsignors, priests, nuns and then the saints, archangels, angels and guardian angels in that order. Religious programming serves to foster the ceremonies, observances of traditions and its deities. More importantly it informs us of the sacrifices we need to make to exorcise the demons from our soul. When we deviate from its prescriptions, we feel guilty—in this the church, our parents and schools have done a splendid job. The Catholic culture, like all cultures, passes down its moral traditions in the parable or its religious stories, the prayer, the Gospel, and the Catechism.  I leave out the Bible, because in the Catholic Church only the priests have access to it, the church considers the laity too ignorant to interpret it correctly (considering the wide spread belief in creationism among U.S. politicians, withholding the Bible may not be a bad thing). The pope must have realized this sometime during the Reformation.

 

Beyond holy significance, our religious culture defines our day-to-day behavior, how we ritualize birth and death, and how we respond the ought and naught of secular exigencies. These rituals inculcate the religion’s orthodoxy of values of fairness, justice or sin that get converted into a civic order.  Eventually these become the moral, ethical and legal foundation for our lives. It drives important decisions: whom we marry, how many children, how we earn our living, how we see suffering, crime, punishment, equity and duty. It serves to guide our actions in individual and collective ways, sometimes for good and sometimes for evil. It establishes the grounding, upon which we resolve to fashion our race, our tribe, and our society.

 

Contradictions, paradoxes and doubt summarize my theological insights. If a god exists, it defies logical explanation. We have no ability to comprehend Him or It on rational terms. In the late 90’s, a group of old men were executed in Kosovo, and five young teenage girls were beaten and raped in the same town by the rebel forces sympathetic to the Serbs for no apparent reason, except that they were Moslems in a Christian world. More recently the Iraq War pits Moslem sect against competing Moslem sect. Terrorists attacked us on 9/11 in the name of Allah. But, it’s not just religious zealotry that shocks us. In another report, a woman and her four children walking along a Connecticut railroad track at two o’clock in the morning are killed. A six-year-old fires a gun and kills a six year old. It’s not death that contradicts god. It’s the manner of death, its meaninglessness, harsh random, casual and cruel causation that contradicts him. god’s presence, his teaching, His power never explains why good people often suffer the brute forces of Nature or why decent people die at the hands of despots crazed by ideological war or zeal, or at the whim of common criminals. And, why evil people may live lives of comfort and die in dignity and tranquility. Do we take it on Faith that he embodies Divine Justice?

 

I struggle to disavow the notion that predestination is god’s gift of Grace to some and not others, that he has favorites, or that he chooses one over the other, as He chose Jacob over Esau.  Does he choose friends and relatives of mine to live excruciating lives or to die excruciating deaths? Not a day goes by without hearing about some accident, epidemic or natural disaster reducing an otherwise healthy population. In the Balkans, Middle East, Sub Saharan Africa, Chechen Republic, Iraq, Darfur, and selected infernos of hell on earth, women and children succumb to the wars of mechanized killing at the hands of zealots, demigods, and diabolical politicians (mostly men). If there were a god, what is he thinking! Is he really just making room or deciding something else?

 

The deacon and his staff passed out lighted candles and we all headed for the front gray granite church steps. The December night was cold and windy, but the congregant’s demonstrated the will to sing one last verse of Silent Night. I held one granddaughter in each arm. We shivered with the rest of the chorus. The singing swelled my heart. In the words of the philosopher cleric Kierkegaard: “…if God does not exist it of course would be impossible to prove it; and if he does exist it would be folly to attempt it.” So after an evening of listening to my granddaughters sing their little hearts out, we sang the words of a song that made  me no wiser, but perhaps as joined together, warmer and richer.

 

PATENTS IN MOTION

A PIXEFFECTS COMPANY

50 Beach Avenue

Milford, Connecticut 06460

Tel. 203-876-1342

www.pixeffects.net

 

 

Patents In Motion^TM is a Pixeffects Company created to help inventors and entrepreneurs show how a patented invention works. Rather than the customary prototype creation we use 3D computer graphics, animation and digital film with after effects. Our idea improves the understanding of an invention especially when the patent forms the basis for a new venture, a license or litigation. Prototypes are enormously expensive because in many cases they require a mold or machining out of solid materials. The costs can run $15,000 to $30,000 for a simple product. The alternatives, computer aided design and conventional 3D computer modeling, has also been prohibitive in cost (similarly costing $10,000 to $20,000). We keep product development costs low based upon experienced in-house graphic design, patent and engineering specialists, having access to libraries of graphic templates, proprietary methods for creating the graphics and the latest software. For clients we create a 3D graphic directly from the patent specification and drawing. In most cases the cost is between $1,500 and $5,000. Our business model supplies the finished work product to firms who may use or integrate the product for their specific needs. We have 3D computer graphic patent demonstrations at: http://www.pixeffects.net/PatentsinMotion.html

The Ethical Reality of Bioengineering  

Joseph Carvalko, Jr.

Copyright 2008

 

From the recent successes of the Human Genome Project in deciphering DNA, scientists rapidly shift to catalog the library of millions of proteins that account for all cell structure, states of biologic affairs and processes. The bioengineering revolution moves forward at a lightening pace. In the latest addition to the technologic lexicon, proteomics now leads the way in the search for the Holy Grail of therapeutics. DNA may be the fundamental blueprint for life, but the final engineered products configure themselves from massive inventories of distinct proteins. These three dimensional combinations of molecules fasten together like beams, trusses and trestles to create both structure and dynamics in the performance of form and function without which life in any species would not exist. The popular press reports that the worldwide market for proteomics instruments, supplies and services (many of which are being patented) will reach $5.6 billion in the next three years. [1]   The new initiatives in scientific instrumentation will surely lead to new drugs, revolutionize the practice of medicine and shape the health care industry into the next century. The financial incentive cannot be underestimated. The billions being invested on R& D today will return rich rewards over the 20-year term that the inevitable patent provides for the object of these ambitious entrepreneurial efforts: proteomic drugs. 

 

Although there has been and continues to be much debate in the U.S. over stem cell research, the debate in the U.S. over patenting stem cells has not yet reached the stridency heard in Europe. In July 2002, after fierce protests and public colloquy on the patenting of stem-cell technology, the European Patent Office’s Opposition Division held that patents cannot support human or animal embryonic stem cells, but can claim other modified human and animal stem cells. In forming its judgment it found that the granted patent failed to comply with the requirements of Rule 23d (c) of the European Patent Convention (EPC) which stipulates that uses of human embryos for industrial and commercial purposes are excluded from patentability. [2]

 

In the U.S. resistance against stem cell research largely is one over the sanctity of life as embodied in the the embryo from which stems cells are mainly derived. As exemplified by the recent stem cell resistance in Europe over patenting stem cells, patents have social significance because they form not only assets which have economic value, but because they indicate something about the culture in which they are granted favored legislated status. At least in free market democratic societies the scales tilt in one or another direction depending upon how social values and economic values of intellectual property transform under institutional and political pressures. Too heavy an emphasis on economic considerations keeps social imperatives from finding their proper levels.[3] To keep the scales balanced requires that we factor moral purposes into any analysis.

 

Thomson’s human embryonic stem cell technology has yet to produce a commercial product, but ownership in the biotechnology of tissue samples, embryos, and life saving drugs raise important economic and moral issues. In November 2001, Advanced Cell Technology announced that it successfully cloned human embryos for therapeutic purposes. Others around the world are also working long hours to achieve the ambitious goal of human cloning, but for reproductive ends. In Italy Severino Antinori, founder of the Associated Researchers for Human Reproduction (RAPRUI) clinic, has been an outspoken advocate of human cloning for just this purpose. In claiming that he had already cloned a human embryo of 20 cells, he goes on to justify the practice in terms of a market demand where presently over 6,000 couples in the U.S. alone await a reliable protocol for cloning their future children.[4]  At a recent conference on human cloning at the National Academy of Sciences, Panos Zavos, a professor of reproductive physiology at the University of Kentucky and co-founder of a fertility clinic in Lexington, reportedly indicated that he would assist couples in achieving their reproductive goals through cloning when the male partner could not produce viable sperm. [5]

 

The articles that follow deal with law, social reality and ethics as applied to bioengineering. I again discuss intellectual property (IP) in the context of its ontology and its phenomenology. In short, IP represents a jurisprudential concept as does its common analog real property, but it also represents artifacts characterized by degrees of tangibility. It is in this second sense that intellectual property is not well understood. In some forms, the artifact is simply a thought (such as a creative idea) and at other times, the artifact is a physical device or process. The jurisprudential ontology (which deals with rights, such as ownership) and its existence as an artifact with degrees of tangibility are mutually affected by societal intentions. To establish this linkage, I have borrowed the concept of social construct from John Searle[6]. If we accept the proposition that law is governed by the rules of social construction, it permits us to project and analyze the economic, utilitarian and teleological considerations with greater insight than current treatments allow.[7] For example, much has been debated about the ethics of patenting life forms, but little exists by way of any, scientific, philosophical or legal theory that helps to separate the natural cytological manifestation of the life form from the science utilized in its creation or from the legal and moral rights that envelope each of these states of affairs.  

 

 

I have a jazz group that can be found at

 

 

Also see us on YouTube

 

 

 

ESSAYS ON LAW, SCIENCE AND TECHNOLOGY

 

Joseph R. Carvalko, Jr.

COPYRIGHT 2008

 

PREFACE

 

 

The manuscript that follows endeavors to weave the threads of law, science and technology for students who may find themselves having to deal with these issues in the course of their careers. Science and technology are in a state of unprecedented growth and although it is impossible to foresee what issues may arise in tomorrow’s world, through selected writings, I hope that an underlying structure will prevail and serve the student’s needs for some time to come.

 

At the intersection of law, science and technology we find society’s values, goals, and principles such as its ethics. The introductory essays survey the question ‘what is science’ primarily as viewed from the lawyer’s interest. In large part how we frame the issues in science and law depends on the objectivity of the terms used, and the dialectic and sophistry used by advocates on differing sides of the issue. As such, a section on language provides a perspective from differing professions, the ethicist, lawyer, and scientist. The middle essays set forth the proposition that law, ethics and technology shape our institutions and ultimately our society. Several essays deal with intellectual property protection, providing a sense for the scope of cover that the law traditionally allows. In a series of  discussions I venture into a scheme to formulate operators or rules that help separate natural laws, social constructs and legal regulation, each of which bear upon social change. Whether the idea has merit will have to be judged by critical readers on the subject. I also discuss the track the government has taken to liberalize the granting of software patents. The moves show the progression from patenting technology to patenting elements of our institutional reality. I next join technology and ethics in the context of intellectual property as a means of laying the foundation for analyzing evidence that attitudes towards biological and information-based patenting reflect a changing social structure raising moral questions.

 

In the closing essays, I draw upon facts presented earlier to look beyond economic issues in asking if the goals of the the country's founding political tenets (life, liberty and the pursuit of happiness) are adequately considered when formulating science, technology and intellectual property regulation.

 

Many readers will want to have a conceptual point of reference for the technologies discussed (biotechnology, artificial intelligence, computers, and business methods). Therefore, throughout the book I provide short histories of these technologies.

 

In the essays to follow, most are chosen from individuals and organizations who have offered the benefit of their backgrounds in ethics, law and science. Essays that I have authored state my opinion on a range of subjects. In many cases the opinions may be controversial or out of the mainstram of current thinking. I hope that some of the ideas expressed will foster a spirited debate in the interest of expanding our view of the matters addressed. In essays included from outside sources I have preserved the references as footnotes that accompany the article. In essays that I have authored references are found in the endnotes.

 

I caution the reader that what follows is a collection of readings that support a point of view. The core of the idea advanced throughout this manuscript considers that humanity constitutes a cycle of natural patterns that form our very existence. These patterns do not merely express the rules of reproduction and survival; they express the form of life through a consciousness and a conscience of social constructs. This includes a moral catechism, albeit authored within the realm of the narrative of the individual, her culture and the times to which she is born. Our social reality creates the very technology that affects where this life cycle both begins and ends. If through an irresponsible and irreversible application of technology we were to damage the patterns formed by nature, we would be accountable for affecting the moral ecology upon which all humanity as we have come to appreciate depends. I believe that the moral ends that one might objectively adopt ought to aim at securing the integrity of our natural patterns of formation; otherwise, we risk moving into patterns that looking forward might be sadly regrettable.

 

ABOUT THE AUTHOR

 

Joseph R. Carvalko, Jr. is a lawyer and engineer with over four decades experience in law, engineering and science. He currently practices law in the area of technology, science and intellectual property law representing clients as their needs as relate to technology licensing, acquisitions, and patent matters (prosecution/litigation). He is an adjunct professor of Law, Science and Technology at Quinnipiac University School of Law. He is also a member of the American Bar Association, Section on Law and Technology and and past editorial board member of The SciTech Lawyer a quarterly publication of the Section, and a former Chairman of the Behavioral Sciences Committee of the Section. He has taught trial practice to law students over the years as well as courses on management of intellectual property assets, diagnosing organizational behavior and the responsibility of business to society. He holds patents in a number of diverse fields such as biomedical, business machines and fuel systems. He has conducted research in the fields of data mining, cytological biomedical applications using information theory and its application to optical and acoustic holography; designing parallel processor computers and programming, developing pattern recognition systems for military and biological applications, working under the direction of the well-known information theorist Dr. Marcel Golay and professor Kendall Preston.  In his capacity as a lawyer he has represented a broad class of litigants from clients charged with crimes to patent infringement. He has conducted jury, bench trials, and arbitrations. Mr. Carvalko is a graduate of Quinnipiac University School of Law and a graduate of Fairfield University School of Engineering.

 

 

ESSAYS ON LAW, SCIENCE AND TECHNOLOGY

 

Joseph R. Carvalko, Jr.

COPYRIGHT 2008

 

PREFACE.. 7

INTRODUCTION... 11

PART I:  SCIENCE.. 14

A Continuum of Change-So What’s New?. 14

Reference Manual on Scientific Evidence. 18

Correspondence Rules. 25

How Science Works. 31

Galileo: The Church Controversy. 46

Intelligent Design and the Dover Area School District 48

Global Warming Science. 60

Theories and Nonobservables. 64

Federal Rules of Evidence (2004) 69

William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. 71

PART II:  ETHICAL OVERVIEW.... 82

Ethical Questions in Law, Science and Technology. 82

The Language of Ethics. 86

Internal and External Goods. 93

The Inventive Spirit 96

Science and Technology and the Triple D (Disease, Disability, Defect) 102

Genetics and Discrimination. 113

Policy Making. 119

Legislation. 124

Moore v. Regents of University of California. 125

Atoms of Expression-Who Owns Them.. 140

PART III:  LANGUAGE.. 144

Language at the Bottom.. 144

Introduction to an Ontology of Intellectual Property. 147

Phillips v. AWH Corporation, et al 151

Empiricism, Semantics, and Ontology. 160

Who Speaks for the Stem Cell 167

On Terminology for Human Cloning. 172

The Maxim Rules. 187

Natural, Constitutive and Regulatory Rules. 191

PART IV:  TECHNOLOGY.. 195

Paradigms, Programs and Paragons. 195

A Short History of Computers. 200

NBICS (NANO-BIO-INFO-COGNO-SOCIO) Convergence to Improve Human Performance: Opportunities and Challenges  208

A Primer on Bioengineering. 225

Defense and Biology: Fundamentals for the Future. 232

The Magnitude of Change. 235

Getting to the Heart of the Mind. 238

PART V:  INTELLECTUAL PROPERTY.. 241

Converging Technologies and Intellectual Property Issues. 241

The Legal and Social Rules for Intellectual Property. 244

A Multithreaded Tessellation. 248

Patenting Biological Assets and Pharmaceuticals. 259

Patent Options for DNA Inventions. 260

Patentability. 263

The Business Method Patent- A New Look at a Brief History. 269

ANNEX III Improper Tests For Subject Matter Eligibility. 285

ANNEX IV Computer-Related Nonstatutory Subject Matter. 290

ANNEX 5 Mathematical Algorithms. 295

PART VI:  ETHICS OF PATENTING... 297

The Ethical Reality of Bioengineering. 297

Ethics Considerations in Patenting DNA.. 299

Patenting Life Forms – Ends in Themselves. 304

Diamond V. Chakrabarty. 315

The Emergence of a National Policy. 322

Reaping the Benefits of Genomic and Proteomic Research. 323

Real World Telos. 338

The Ethics of Patenting DNA Chapter 3. 341

Hardware, Symbolware and Natureware. 358

PART VII:  BEYOND INTELLECTUAL PROPERTY.. 367

Identity-That Which We Are. 367

Issues of Human Dignity in Procreation. 369

Utility of Form and Ethics. 380

Closing Remarks. 392

END NOTES.. 394

MATHEMATICS IN THE SOFTWARE

 

Joseph R.Carvalko

Copyright 2007

 

In 1992 and in 1994, the Federal Circuit extended patent protection to two inventions that solved a unique set of mathematical equations using a digital computer. In Arrhythmia Research Technology[1] the court found its footing in the Diehr pattern and held that the transformation of electrocardiograph signals from a patient's heartbeat by a machine through a series of mathematical calculations constituted a practical application of an abstract idea (a mathematical algorithm, formula, or calculation), because the condition of a patient's heart represents a useful, concrete or tangible thing.[2] Here the state was the condition of a patient’s heart. In point of fact the court moved beyond Diehr, because the Arrhythmia invention was not a transformation of one substance into a different substance (cured and uncured synthetic rubber), but of mensuration and interpretation, of the heart causing an electrical signal that in turn disclosed a heart’s condition (physical state). Clearly, the phenomenological elements changed, but the court did not view that change as having moved the matter outside the Diehr model. [3]

 

In reading a limitation not found in the patent statute into the term “process”, the Benson Court earlier determined that “a procedure for solving a given type of mathematical problem”, in that case a conversion from one numbering system to another, did not satisfy the patent statute’s utility requirement. In this regard, the Court’s holding had the effect of retaining the integrity of the “abstract idea” exception. In Flook, the court found that the process involved a mathematical calculation, and again determined that it was therefore unpatentable. Flook mixed the terms “formula” and “algorithm” and confused the meaning of “mathematical algorithm”. [4] The court in Arrythmia declared that an “algorithm” required both a mathematical problem and a procedure leading to a solution.

 

In Arrythmia, the court wrote, “…Mathematics, like a language, is a form of expression. The operation of a machine, the generation of electricity, the reaction of two chemicals, a baseball batter's swing, a satellite's orbit—all are within the descriptive power of mathematics. [5] … some mathematical algorithms ... represent ideas or mental processes and are simply logical vehicles for communicating possible solutions to complex problems… No wonder the Benson rule is confusing when electrical, chemical, or mechanical processes escape scrutiny when expressed in written language, but become suspect when expressed in the mathematical language.”

 

TURNING THE CORNER

 

John Searle helped us see how we seamlessly move from the material world of atoms to the social world of human intentionality.[6] A socially constructed world joins the world of intangible ideas, products, and processes through a social construct comprised of collective intentionality, constitutive rules, and the assignment of meaning. Social constructs serve to create, observe, and to explicate the world in terms that are not always scientific: the everyday life of expressing who, what, when, how, and where. Through the exercise of intentionality, we construct nonphysical social systems for our welfare, security, and propagation. And, it seems to move the physical requirement historically underlying the patent system into a socially constructed one.

 

Arrhythmia opened the patentability of software incrementally linking it to our socially constructed world. In 1994, Alappat cracked wide open what had become an increasingly crazed dam, trying to cut finer and finer distinctions around the concepts of “abstract ideas”, “mental steps” and causal connections. [7] However, on the facts, this was a tough case to make for moving abstractions into the realm of the material world. From all external appearances it represented a case of whether programs were patentable under the statute, but behind a scene was whether the court would permit the elimination of the causative factor we associate with physical systems.

 

The claimed invention was drawn to a rasterizer for presenting data on a digital cathode-ray tube (CRT). [8] Such a screen has limited resolution or the ability to show details smaller than a certain size. The discrete number of picture elements or pixels also affected the smoothness in the display of a curved line. As a result, when configured to display data that maps to a curve line, the rapidly rising and falling portions of the curve would appear jagged. [9] The input signal was digitized and formed a vector of values. The intensity at which each of the pixels was to be illuminated depended upon the distance of the center point of each pixel from the vector trajectory on the screen. Pixels squarely on the waveform trace was to receive maximum illumination, and pixels lying along an edge was to receive illumination decreasing in intensity proportional to the increase in the distance of the center point of the pixel from the vector trajectory. The invention solved the problem by effectively decreasing the illumination of the outlier pixels.

 

The Court’s majority found that the “means clauses” in the claim relating to software actually recited a machine composed of known electronic circuit elements.[10] The corollary finding was that the means for creating a smooth display in the CRT, should not be read as a process. This eliminated having to deal with whether an algorithm was involved. And, since algorithms only carry out processes, they have no material physicality. This obviously narrowed the argument. All attention would center on whether there were sufficient expressions of novel hardware, that is material elements to carry out the invention.

 

We understand from the holding that the data is transformed through a series of mathematical calculations. This would seem no different than summing a list of numbers by manually entering them into a mechanical or electronic calculator. It remains unclear how this produces any causal effect or becomes self-interpreting without an intermediate agency. In Alappat, this unnamed phenomenon produces a smooth waveform display on a monitor. A CRT display refers to a glass surface coated with a phosphorescent material that illuminates when showered by electrons. Although useful, concrete and tangible, such a device and its phenomenon may logically lack novelty. This logic gets lost in the majority’s argument.

 

Judge Archer writing for the minority argues rather persuasively that: “Even though it recites structure, claim 15 should be rejected under § 101…Thus, a known circuit containing a light bulb, battery, and switch is not a new machine when the switch is opened and closed to recite a new story in Morse code, because the “invent[ion] or discover[y]” is merely a new story, which is nonstatutory subject matter. An old stereo playing a new song on a compact disc is not a new machine because the invention or discovery is merely a new song, which is nonstatutory subject matter. The perforated rolls [of a player piano] are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination…Yet a player piano playing Chopin's scales does not become a “new machine” when it spins a roll to play Brahms' lullaby. The distinction between the piano before and after different rolls are inserted resides not in the piano's changing quality as a “machine” but only in the changing melodies being played by the one machine. The only invention by the creator of a roll that is new because of its music is the new music. Because the patent law does not examine musical compositions to determine their relation to those that have gone before, the distinction between new and old music can never qualify for patent protection.”[11]

 

The minority found that the rasterizer was a mathematical converter. Archer points out, “The rasterizer mathematically converted data. The question and the disagreement was over whether the rasterizer was, in addition to being a mathematical converter, also a “machine” under the patent statute. The majority found that is was and won that argument.

 

In Alappat, the Federal Circuit divided along an uneven fault line; with those who viewed objects of the technology under examination as producing harden tangible outcomes and others who saw them as producing ephemera. [12] The notion of stare decisis breeds into common law a measure of constancy, but often it suffocates the life out of dissenting opinions, even when they may take the better position or in retrospect makes the better argument.

 

In finding that the program deserved statutory protection, the Alappat Court had to properly interpret the significance of each and every term in their holding which essentially found that data, transformed by a machine through a series of mathematical calculations to produce a smooth waveform display on a rasterizer monitor, constituted a practical application of an abstract idea (a mathematical algorithm, formula, or calculation), because production of a smooth waveform is "a useful, concrete and tangible result". Implicit in this finding is a belief. This belief is grounded in the majority’s social reality, base upon its “collective intentionality”, its application of constitutive rules (the rule of law, both general and patent specific), and lastly its assignment of meaning, in this instance identifying the requisite albeit observer-dependent “use".

 

This holding has several problems beyond its disputable final effect. Data represents a mental construct of something that might or might not be tangible. The results from last year’s election, a weather map listing temperatures around the country, or the information on a birth certificate, contain data. But, we cannot hold this “data” as we can hold a hammer. The data sits in the mind’s eye. Data might be represented in the form of a chalk mark on a board or in an electrical state stored in a silicon chip. But, data represents nothing, unless we provide it an interpretation. So that data transformed by a machine, means in the case of a computer, electrical charge transformed into an accumulation of charges, perhaps at differing positions or manifesting at different times, all of which can be construed to mean whatever the individual exposed to the data decides it means. That something is not objective. It is subjective and beyond individual interpretation depending ultimately on the collective agreement as to its meaning.

 

In the Alappat invention, there were copious “means for” claiming.[13] As such, the underlying and important determination should have been whether the means, which constituted the hardware, were novel.[14] The majority opinion found that the “means for” support was found in the subsequent claims.  Claim 16 called for a means for determining the vertical distance between the endpoints of each of the vectors in the data list.[15] For this the judges refer to an arithmetic logic circuit configured to perform an absolute value function.[16] Claim 17 recited that means for determining the elevation of a row of pixels spanning the vector also comprises an arithmetic logic circuit, configured to perform an absolute value function. Claim 18 recited that the means for normalizing the vertical distance and elevation comprised a pair of barrel shifters. Finally, claim 19 recited that means for outputting comprised a read only memory (ROM) containing illumination intensity data. [17]

 

The matter in this instance and patenting software generally requires making proper epistemic and ontologic analyses. The mind must wrap itself around the question whether the software equates to the idea, the written work (source and object code), a process or a machine? Essentially, was “the means for” performing the specified functions without the recital of structure, material, or acts able to be construed to cover the corresponding structure, material, or acts described in the specification? And, if so were these artifacts novel? Bennett and Feldman point out: “If a categorization permits the hearer to draw a clear and sensible inference about the connection between the categorized symbols, the listener will make that categorized connection.” [18] Apparently, the majority felt that they heard what they needed to make the connection. Certainly they were mindful of the industry’s clarion call for intellectual property protection for software related inventions.

 

It had been conceded that each of the means were components known in the electronics arts before Alappat made his invention. Typically this would not bode well for an applicant trying to prove novelty. Oddly enough this gave the majority flexibility in constructing its vision of novelty. Neither courts nor we ever have all the facts that a complete description of the whole requires. We draw inferences in making empirical connections. This is precisely what the majority did. The validity of these connections and their relationship to each other are judged based on accuracy, appropriateness, consistency and completeness. In addition, each of these is in turn made with reference to a category of appropriate things. [19] The more someone knows about a subject, the broader one's range of accurate and appropriate responses and the greater their ability to sense ambiguities, report nuances and require details. However, without a unified theory of intellectual property, jurists are left with no map to get from point A to point B. As such they are apt to get lost in the complexity of the matter.

 

The majority stated that: “Although many, or arguably even all, of the means elements recited in claim 15 represent circuitry elements that perform mathematical calculations, which is essentially true of all digital electrical circuits, the claimed invention as a whole is directed to a combination of interrelated elements which combine to form a machine for converting discrete waveform data samples into anti-aliased pixel illumination intensity data to be displayed on a display means. This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result.”

 

The revolution was nearly complete with the majority’s reassertion that the invention read on a programmed general-purpose computer. This alone did not justify holding the invention unpatentable, since it had previously held that such programming only creates a new machine. However, every time a general-purpose computer is programmed, it becomes a special purpose computer performing particular functions. Since, software does not function outside a computer, claiming software in combination with a computer satisfied the court, and for that matter most of the software community looking for a clear signal that the matter fell within the patent statute. 

 

LOOKING BACK

 

After Alappat, we might view that the connection between the software and the computer relate cause and effect, that the computer acts upon the software and the software acts upon the computer, and that this causality connects and unites the two into one machine. Neither Diehr nor Arrhythmia substantively changed patent law. Alappat did.  The holding would normally have required a change to the patent statute. It marginally changed the procedure by which patent applications would be examined. What did not change was the court’s recognition that engineered devices having requisite novelty might also have computational elements within the statutory scheme that Congress intended. By today’s standards Babbage’s computing engine would have been patentable. So what about its electronic analog? Unfortunately analogs are sometimes in the eyes of the beholder. As such it took years for the judiciary to view the analogy, that electronic computers operating under computational software were nothing more nor less than its mechanical analog, a calculating engine. The judiciary’s long trek from Abrams to Alappat demonstrated the elasticity patent law has in expanding its reach to embrace new technological processes. [20]  In the nineties software/computer cases lead the court to expand the category of things that fit within the framework of novel engineered devices.

 

From the very beginning, computers ran processes that were non-transforming. Producing new applications and labeling them Quicken or Microsoft Money did not change matters. Yet these too were processes that would be covered by patent protection. For example, to illustrate the jurisprudential distance between Diehr in 1980 and the mid-1990’s, the Federal Circuit now held that the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constituted a practical application of a mathematical algorithm. In this case, discussed below, and the thousands to follow, the sophistic thinking that had to consider the technological intricacies of “mental operation” had mysteriously vanished. In the mid-1990’ the courts were beginning to look at computer systems from fifty thousand feet and references to technology would seem as if they were more out of respect to a dying relic than a requirement under patent law. In 1995 the U.S. Patent Office promulgated guidance to its examiners and the patent bar alike to clarify what distinctions exist between data and purely descriptive material.[21]

 

Unfortunately, the Alappat court did not have a clear view of some fixed horizon, but one cluttered by the technicalities of technology, arcane patent law and a changing business environment clamoring for patent protection. When judges make new law, they legislate. If the judgment were made and applied only in this particular case, the entire matter would have reverted to its pre-Alappat era, none the worse. However, in regards to the line software cases the judges took up the task of the legislators. The decisions had the effect of changing patent law substantively. [22] Such dramatic judgments in high courts more often than not cause permanent alterations to the segment of society most affected. At the risk of overstatement, I believe that computers, having become ubiquitous to modern endeavors, affected virtually every economic and social fabric of life. For without a clear mandate that software was patentable, the modern era of the dot-com industry would not have materialized in the same way, whole new industries that create and manage patents would not have sprung, and in some sense the same kind of liberalizing force at work here, might not have drifted into the consideration of patenting life forms.

 

The Business Method Patent- A Brief History

Joseph R. Carvalko, Jr.

Copyright 2007

 

 

For the better part of 30 to 40 years following WWII isolated freestanding computers did not significantly affect our society, economy or our institutions. However, as computers have come to dominate our lives and influence how institutions (government, banks, insurance companies, hospitals, law firms, etc.) conduct business it has changed our social reality. Tracking this path has been the U.S. patent system’s effort to understand what role it would play as computers became ubiquitous. Part of this effort took us on a  path that lead from the convention that mathematical statements were not patentable to the convention that business methods (essentially computational statements) were patentable. This development turned out to be one of the most stunning in modern intellectual property history.[1]

 

Let us start at the beginning. Inventions have traditionally formed the bridge between objects or artifacts whose meaning we have assigned by virtue of physical features and a system of utility (e.g., a bathtub or a common pail each have a form or shape able to contain water). This characterization would exclude scientific theories and mathematical systems, because each of these entities are nonphysical. Although the water containment feature of the pail (e.g., a concavity for holding X gallons of a liquid) may be apparent, the application we assign to it  are in the eyes of the beholder (observer-relative). For instance it may not be assigned the role of pail, but that of an anchor if I were to fill it with concrete and use it on my boat. Every novel application creates a new entity in the world. Inventive entities as such are ontologically subjective, because their existence (what they are used for) depends upon someone assigning a function or a purpose to them. Nevertheless, certain artifacts, such as the pail or bathtub, have a high degree of objectivity, because a judgment about the fact that the thing is an artifact for doing X (in our example, containing a liquid) does not depend on anyone’s judgment or attitude, but upon objective facts about what sufficiently holds a liquid. We would consider the fact about the containment feature of the pail to be epistemically objective. However, as inventions progress into the abstractions of calculations, data, and symbols, we loose that sense of objectivity. An aboriginal friend of mine in the middle of the Amazonian rain forest and I would have no difficulty agreeing that a common pail retained water, but I doubt my friend would agree with me that a number in a computer register stood for a stock price.

 

However, with increasing frequency, policy makers and judges admit into the traditional class of things referred to as patentable invention, objects whose meaning we assign by virtue of the symbolic features relative to a commercial undertaking.[2] These entities have a phenomenological being or existence (dependent upon my awareness of them) rather then possessing the character of an objective reality or existence (as for instance something in nature, such as a mountain or an ocean).  Such is the case with business and computer methods that at bottom are mathematical systems.

 

The current computer/patent epoch began in 1951, with a case captioned In re Abrams. The Court of Customs and Patent Appeals found that Mr. Abrams claimed a method of prospecting oil. At the critical juncture where one could decipher the vision of novelty, Abrams’ claim element failed to disclose any device for performing the crucial step. In fact, it was clear the missing device was to be supplanted by a calculation—a manual calculation. Save, this element, the balance of the claim was old art and not novel. The court stated what was then considered the obvious: “…Citation of authority in support of the principle that claims to mental concepts which constitute the very substance of an alleged invention are not patentable is unnecessary. It is self-evident that thought is not patentable.” [3] And, thus was born the era of the doctrine of “mental steps”.

 

Beginning in 1968 the well-settled strictures imposed by the  "function of a machine" and "mental steps" doctrines were loosening, leading to a sense that computer programs were within the categories of inventions to which Congress extended patent protection.[4] In re Tarczy-Hornoch essentially raised the question whether  the “ontic dimension of a technology lies in technique or artifact”.[5] These decisions far from settled the matter, but beginning in 1968, we could see the court’s position opening into a new dawn.

 

In re Prater was the first in a series of related cases. [6]  The invention was drawn to a method for generating coefficients of a set of simultaneous equations, generating the magnitudes of the determinants, comparing the equations to ascertain the one having the largest magnitude and using that data to generate a concentration of a mixture of gases being spectrographically analyzed. There was little doubt that the calculation could be carried out manually. However, the court held that a process that may be performed mentally should not foreclose patentability, if the claims reveal that the process also may be performed without mental operations—as by a programmed computer.

 

In the Prater case the U.S. Patent Office was disturbed by the court’s willingness to move the bar on the former prohibition against patenting “mental steps” and sought a reconsideration of the case. The Patent Office took a different tact the second time around and charged that the invention failed to “particularly point out and distinctly claim” the invention under 35 U.S.C. Section 112. Interestingly, the patent Office raised the matter that if the invention read on a series of mental steps, it would violate the free speech clause of the First Amendment. After all, it would preclude someone calculating the solution using a pencil, paper, and slide rule, calculator or sheer force of mind.

 

In the course of the rehearing, the applicant countered the Patent Office argument by stipulating that they did not intend that the claim cover mental steps, essentially disclaiming that possibility. This had the effect of the court remanding the matter to the Patent Office for further proceeding to allow the applicant to remove the inherent ambiguity. The result of the rehearing left undecided the central issue: whether a computer program or a mental step at the point of invention and needed to carry out the process could be patented? 

 

In re Bernhart and Fetter, the next case to address the matter, the court affirmed the second Prater case and held that a claim[7] that included a computer program was within the patentable subject matter. [8] We see in dicta that programmed computers were in and of themselves not identical with “mental steps”. The opening of this new fissure would slowly start to swallow the mental steps doctrine. The court wrote: “…Looking then to method claim 13, we find that it in no way covers any mental steps but requires both a “digital computer” and a “planar plotting apparatus” to carry it out. To find that the claimed process could be done mentally would require us to hold that a human mind is a digital computer or its equivalent, and that a draftsman is a planar plotting apparatus… We are unwilling to so hold.” [9] Perhaps among all the cases, this decidedly shifted the landscape.

 

In a 1970 case the CCPA held that the logical and numerical symbol referred to, as the “bit” constitutes tangible electrical pulses and not the “1’s” and “0’s” that one associates with mental calculations.[10] Engineers tend to ignore this distinction in modeling systems, but in the actual machines, the “bit”, “1’s” and “0’s” are voltages or currents, not intangible abstractions. The court reasoned that the mind could not sense the pulses and therefore perform the method claimed. It was an ingenious way out of a conundrum, and one that would, in subsequent years, find its way in reasoning away the matter of whether a mental operation or abstract idea was in play. 

 

In each of the cases cited, the applicants disclosed hardware and as such would not seem to have addressed the matter of software directly, a subject that would be addressed directly in Gottschalk v. Benson. [11]  In 1972, the Benson Supreme Court addressed an invention described as being related to the processing of numerical data by a program and more particularly to the programmed conversion of binary-coded decimals into pure binary numbers. The court started off with a simplistic view of what a computer is:  “A digital computer …operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand”. [12] But, what had been the previous focus, “mental steps” was now the matter of “mathematical formula”. It justifiably went on to hold that a patent claim that “wholly pre-empts” a mathematical formula is too indefinite and overly broad. A patentable process should transform and reduce an article “to a different state or thing”. Merely generating an abstract numerical value or changing the form of a number or translating a number from one unit of counting to another does not alter anything and therefore is not patentable. Calculations have no causal effects.

 

Following Benson, the Parker v. Flook court held that a method for updating alarm limits during catalytic conversion processes, in which a mathematical formula represented the only novel feature, was not patentable, either.[13] This ruling seemed consistent with the standing notion that there had not been the requisite physical effect at the very point of invention, that being in this instance a mathematical computation. Recall that the Abrams and the Prater line of cases dealt with “mental steps” at the point of invention. The court made the point, as they did in Abrams, that novelty was absent. Here they observed that chemical processes involved in catalytic conversion were well known, as were the monitoring of process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and that automated processes used computers for monitoring. At the point of invention, novelty was missing.

 

In this case the Court reiterated that software by itself was nothing more than one of the excluded class of subject matter because standing alone it was nothing more or less than a mathematical formula, with a sequence of steps like long division. This sounds vaguely familiar to the “mental steps” doctrine. We might refer to such a series of steps as an algorithm whether the series involved electronic, chemical or mechanical or mathematical processes. Where the computation of the numerical values stands in isolation as the only novelty, in spite of those values bringing about a physical result, the claim will be rejected.

 

By the end of the 1970’s, inventors had a clear indication of the Court’s anti software position. It repeatedly found that computer programs did not produce a tangible result and therefore, they were unpatentable. Programs were processes that tended to use abstract mathematical formulas masquerading as algorithms. Importantly, there had been a long-standing acknowledgement that through alterable memory a computer produced a new, useful, nonobvious machine every time a new set of software was installed into the computer.[14] This might send the matter into a different direction, where software used in conjunction with a computer served to control an apparatus, which would bring about a physically transforming result such as energizing a lamp, ringing a bell, or firing-off a rocket ship. If the computer were to alter the world in some way, it might be patented. Note that here the court is implicitly acknowledging that computers either transform physical entities (they change the world) or they simply provide for abstract (algorithmic, mathematical) computation without altering nature or causing any physical effect.

 

Computation in and of itself has no intrinsic meaning, so we must provide an assigned meaning or subjective interpretation. Computations are always observer relative. No discernible distinction as to the form exists between the assignment of meaning to computation and thousands of other artifacts such as a book, a bed or a knife. We define something composed of pages containing writing, generally bound and inserted between a robust set of covers as a book. After all, it might also be used to kindle a fire or used as a doorstop and defined as such. We can say what we want about its function in the world, it has no inherent function, as does water to wet, or gravity to pull or charge to attract or repel other charges. An artificial device, whether a computer or software operating within a computer, as opposed to a natural artifact, has no inherent function. However, the Court would eventually determine that if the effect of software or an algorithm caused a tangible result, and the invention gave that result meaning, in the practical sense, the means used would not be grounds to deny patentability. This idea would stand the patent system on its head.

 

In 1981, Diamond v. Diehr [15], again focused the patent bar’s attention on the Supreme Court, when it held patentable an invention drawn to a claim containing a mathematical formula that implemented or applied it in a structure or a process (note the respective substance or the causal elements), which considered as a whole, performed a useful function; and that the subject constituted patentable subject matter regardless that several of its steps included the use of the formula and a programmed computer. The calculation was tied to a tangible result, removing some measure of its purely mental status or subjective interpretation. In this case, the process involved transforming uncured synthetic rubber into a modified substance or state to solve an industry-wide problem of "undercure" and "overcure”.  This multi-step process fell within patentable subject matter because the computer program (computation of a mathematical formula) was inclusive of a larger physical process that had a practical application. [16] The computer and its program changed something in the world.

 

Under the Diehr decision, query, whether the formula could be used by anyone independent of the process and then used to adjust the process to solve the same problem Diehr claims to have solved? This of course takes us back to the Prater line of cases. It would seem that the query demanded a yes answer. However, this particular formula likely had no application outside the process and therefore, patenting the process was tantamount to monopolizing the formula. The Diehr decision had a seismic effect on patenting software despite the Court’s attempt to confine its holding to computer programs that would apply mathematical formulas in a process.[17]

 

In spite of algorithms requiring subjective interpretation, by the early 1990’s court decisions held by implication that algorithms had a causal effect. The opinions reasoned that when the outcome of a series of mathematical statements produced a tangible result, then the machine involved in this consequence could be patented. They were inclined to permit patenting devices that were primarily computational,  if the result of the computation had a causal effect or in the words of the Court were physically transforming. This idea recognizes that some kinds of technology are created out of the rules that establish a tangible outcome. For example, a game does not exist until the rules are fashioned (e.g., one can not very well play chess until there are rules by which to play). We assign meaning apropos of what the technology does, and how it changes the world.

BUSINESS METHOD PATENT

 

Patents deal with the physical world, and therefore owning a patent permits the monopolization of physical artifacts and processes having the inventive features it claims. The inventions may be both ontologically objective (having observer-independent features such as a steel shaft) and ontologically subjective (used as a common nail). Note that function is always ontologically subjective and therefore observer-dependent. As described, our nail is epistemically objective because it contains observer independent features. However, when the very point of invention is a physical event that only symbolizes what something means, much of the epistemic objectivity is lost. Money, contracts, calculations, and states of affairs (e.g., games and business methods) are but a few of an unending list of such items. Here we invent symbols that stand to represent something specified. We utilize an essential feature of an instrument (in a contract: rights, duties, and obligations) or a result of some logical process (a computer output) that has meaning in a context generally accepted by a particular group, but not necessarily universally accepted.

 

That having been said, business method patents in one form or another have existed from the beginnings of the patent Office. Appendix A lists the more important business related inventions from the time the Patent Office opened for business in 1790. However, it was not until 1995 that the Patent Office would clearly state that: “United States patent law does not support the application of a "technical aspect" or "technological arts" requirement. Title 35 of the United States Code does not recite, explicitly or implicitly, that inventions must be within the "technological arts" to be patentable. Section 101 of Title 35 recites that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…” Accordingly, while an invention must be "new" and "useful," there is no statutory requirement that it fit within a category of "technological arts."[1]

 

As is apparent from the list, long before the electronic computer came into existence, patents were filed on many novel business inventions. Computers began to play a major part in running business applications beginning the early fifties. Then during the late eighties as we indicated above, and certainly with the invention of the Internet, we had begun to see computers running entire business lines. In 1998, the Supreme Court extended the useful or practical application notion to software that was integral to methods of doing business.[2] The USPTO also promulgated guidelines for drafting business methods. [3]

 

Signature Financial Group, Inc. is assignee of a patent  “Data Processing System for Hub and Spoke Financial Services Configuration”. [4] The patent generally teaches a data processing system for implementing an investment structure, which was developed for use in Signature's business as an administrator and accounting agent for mutual funds. In essence, the computer system facilitates a structure whereby mutual funds (Spokes) pool their assets in an investment portfolio (Hub) organized as a partnership. This investment configuration provides the administrator of a mutual fund with the advantageous combination of economies of scale in administering investments coupled with the tax advantages of a partnership.

 

Signature Financial and State Street Bank & Trust Co. were competitors, each in the business of acting as custodians and accounting agents for multi-tiered partnership fund financial services. After the patent issued in 1993, State Street Bank tried negotiating with Signature for a license to use the system described in the patent. [5] When negotiations broke down, State Street brought a declaratory judgment action asserting invalidity and no infringement of the patent. Following the initiation of the lawsuit it then filed a motion for partial summary judgment of patent invalidity for failure to claim statutory subject matter. It argued that the patent was on a method of doing business. State Street prevailed in the lower court, but on appeal the court reversed and ruled that Signature Financial’s business methods were within the ambit of the patent statute.[6] It sounded its mantra, that mathematical algorithms are patentable if they produce “useful, concrete and tangible result.” [7]

 

As in the predecessor cases, Arrhythmia and Alappat, Signature’s production of a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and subsequent trades constituted "a useful, concrete and tangible result". Essentially, the court believed that this was no different from a “smooth wave form” or from the “condition of a patient’s heart”. .[8]

 

At some point it became apparent to the court that nearly every engineering process, whether electronic, chemical or mechanical involves an algorithm. Perhaps this happened as early as Diehr, who can say when an institution can be said to understand something. With the announcement that business methods were patentable, the debate that had centered on the algorithm and whether mathematical abstractions were patentable died out. Inventors of software might find a receptive patent examiner if they carefully laid out the idea in a flow chart and included an obligatory reference to a computer in the claims. In regards to U.S. patent law, the long brain tease was over! Nonetheless, much of  the world would still regard business methods as outside the mainstream of patent protection.[9]

 

Despite the new latitude that inventions continue to enjoy after State Street Bank, processes that consist solely of the manipulation of abstract ideas will not pass muster at the patent Office. But, novel claims drawn to software or computer system algorithms have been opened to patent protection—and, in a profound sense a class of mathematical ideas, albeit embodied in the abstraction of a computer program, have been removed from the intellectual commons.

 

State Street Bank paved the way for a new way of looking at business methods—not merely a new technology for doing business, but as new road lined with intellectual property protection. [10] In AT&T v. Excel the CAFC interpreted the rules created by State Street and Alappat to extend to process claims for a method of inserting data into a long distance call record in order to enable billing of a telephone call. [11] State Street and Alappat claims were drawn to structure, but clearly AT&T process claims were drawn to information exchange. [12] Patent protection extends routinely to data processing systems that comprise the business models for insurance underwriting and claims processing, health care management, online banking, billing and collection, stocks and bond trading, airline, auto and train reservation systems and postage dispensing.

 

Today the buzzwords are supply chain economics, centralized sales fulfillment, and one-stop web shopping systems. Business method patents are institutional phenomena. Unlike molecules, neither software nor business methods are comprised of objects that have intrinsic properties or meaning. This latter property should surprise no one; since inventions do not have intrinsic meaning they have assigned meaning. What is surprising to some is that inventions were once thought the province of tangible objects that were functional in virtue of their physical properties. As such the world knew it did not have to depend on abstract interpretation, but the epistemic objectivity inherent in such objects.

 

Business methods are not created from observer-independent artifacts, as are chairs composed of wood, metal and cloth. In other words, they have assigned functions in virtue of their social status. They represent constitutive rules that control antecedent behavior transforming into an institutional and social reality. Tied to every business method are rules that translate into cultural, economic and teleological considerations that property interests further confound. Granting monopoly status, through the patent grant, to these kinds of artifacts deeply affects our traditional realities.

 

The Patent Office also has had its insecurities over improvidently issuing business method patents that later create an uproar in the private sector.[13] Examining and issuing patents in the realm of software and business methods has not been without its difficulties. Unlike the more traditional arts there is a relative dearth of published art that is accessible to the examiner. In 2000 Under Secretary Dickinson called for several initiatives to improve the offices handling of  business method patents. The Patent Office initiated a second level review of all potential allowances in class 705. Under this program examiners must submit what they regards as allowable claims to a board that reviews the prior art used, the breadth of the claims and any other factors that may bear on allowance. One such initiative was to reach out to industry for submission of their prior art and expertise. Recently, the Patent Office announced that it will begin reviewing prior art software and business methods over the Internet using non governmental industry and academic experts. The experts will chose the nominated information and the top 10 items will be passed on to the examiner, who will examine the application otherwise in the normal course.

 

 

Undoubtedly the tensions among diverse interests will continue to influence social, legal and economic interests as well as engineering and scientific progress. However, without critical consideration of the divide between things that belong to the classes of ontologically objective, ontologically subjective, epistemically objective, and epistemically subjective, we risk confounding nature, abstract ideas, and social constructs, and placing off-limits products and processes that under historical considerations might have inured to the benefit of the commons.

 

Introduction to an Ontology of Intellectual Property

Joseph Carvalko, Jr.

 

The SciTech Lawyer SUMMER 2005

 

Science and technology lawyers deal with a variety of matters that invariably implicate invention, engineering, science, and discovery. In many instances the lawyer must see the issues through the eyes of the inventor or the scientist and overlay a wide range of legal considerations, such as patent law, torts, contract, and countless statutes that regulate the subject. Although one would think that a common language is spoken among science and technology lawyers, we might be surprised to learn that a considerable difference in fundamental ideas and concepts exists. An ontology of intellectual property law may begin to stimulate a dialogue to help bring about a confluence of concepts and definitions.

 

Intellectual property (IP) has in common the elements of novelty and creativity and, precisely because it offers something new to the world, it often alters our social order. This is especially true with discoveries and inventions that (through a system of according ownership through the patent system) restrict access to knowledge, lifesaving products, and countless valuable economic processes. Do the mechanisms by which we grant the patent monopoly remain relatively fixed or change depending on the state of technological development? We might stand a better chance of answering this question by looking at invention not strictly through the lens of the patent law, but rather through the lens of ontology.

 

For the purposes of this article an invention refers to new and novel associations, typically collections and assemblages of objects, processes, rules, and states of affairs. Inventions have the further property that they perform functions as specified by a conscious agent, and those functions operate in  accordance with an inventive feature. These limitations exclude from the class of inventive things natural causal processes, abstract ideas, or scientific theories. Although inventive features exclude natural processes, inventions exist within the framework of things that are intrinsic to nature. A stone, which has mass and volume (intrinsic to nature), remains an artifact subject to gravity, but if I were to taper one portion to a point, as resembles an arrowhead, it now has a feature that I might use as a tool or weapon. According to our manner of defining an invention, both the inventive feature and the associated natural part, each has tangibility and an associated status or what I will refer to as a state or state of affairs. The arrowhead, for example, exists in several states, the first in its tapered form and the second in that it may be situated at rest or moving toward its intended target. Inventions have traditionally formed the bridge between objects whose meaning we have assigned by virtue of physical features and a system of utility (e.g., a bathtub has a form or shape able to contain water).This characterization would exclude scientific theories and mathematical systems, because both are nonphysical.  The application we assign to an invention (e.g., a concavity for holding X gallons of bath water and an individual) are in the eyes of the beholder (observer-relative).The new application creates a new entity in the world. Inventive entities as such are ontologically subjective, because their existence depends upon someone assigning a function or a purpose to them. Nevertheless, certain objects, such as the bathtub, have a high degree of objectivity, because a judgment about the fact that the thing is an artifact for doing X (in our example, containing water and an individual) does not depend on attitudes, but upon objective facts about what sufficiently holds its contents. Therefore, we would consider the fact about this essential feature epistemically objective. However, with increasing frequency, policy makers and judges may be admitting into the traditional class of things referred to as invention objects whose meaning we assign by virtue of the symbolic features relative to a commercial undertaking.  Such is the case with business and computer methods that at

bottom are mathematical systems.

 

Quantum Society: Molecules, Metals, and Mammals

 

Moving conceptually from the material world to a socially constructed world requires a bit of epistemology and ontology to explain .2  John Searle suggested that we join the world of things (ideas, products, processes) through a social construct comprised of collective intentionality, constitutive rules, and the assignment of meaning. With an alteration to fit my scheme of presenting IP as one of these points of contact, I have accepted the premise that IP constitutes a social construct because it fulfills the conditions of the formula laid down by Searle. Let us begin, as did Searle, by observing that we live in a world and perhaps a universe that behaves in accordance with quantum mechanics, the most widely accepted theory of physics to date. Organized, yet chaotic fields of force pervade all things. Humans as expressions of atoms, molecules, and higher order materiality experience these so-called fields of force in both a biological form and a social state of affairs. I will often refer to this physical modality as molecules, metals, and mammals, but I really mean everything physical including humans. The physical world organizes itself into larger units we call systems. From a phenomenological viewpoint, systems are sets of causal associations. At a deeper level, the physical world merely obeys the laws of physics, such as postulated by the fundamental laws having to do with conservation of energy and entropy.

 

Scientists have usefully bifurcated natural systems according to certain properties of the elements from which they are composed: inorganic and organic. Systems composed of either type of element behave according to fundamental physical laws, but the latter also behave according to observed laws of evolution. The observable features include combinations of morphology, physical properties (density, electrochemical, and thermodynamic states) and in some rare instance, consciousness. Consciousness produces the observable effect of intentionality and the ability to represent incorporeal states of affairs. These effects cause humans to describe the physical world in terms permitted by such regimens as the scientific method: observable, quantifiable phenomena that behave in accordance with scientific laws. Typically, the lines of subject matter dealt with in the context of the scientific method are intrinsic to nature. These latter effects also cause humans to create, observe, and to explicate the world in terms that are not always subject to the scientific method: the everyday life of expressing who, what, when, how, and where. Through the exercise of intentionality, we construct nonphysical social systems for our welfare, security, and propagation. The civilizations we create embody communities, governance, legal systems, medical access, economic exchanges, and inventions to make progress commensurate with an evolutionary imperative. We create social systems for human purposes such as survival, altruism, power, affiliation, and achievement. Unlike molecules, metals, and mammals in fields of force, social systems are matters under the direct influence of our intentionality. And therefore, they exist in all respects by incorporeal states of affairs or states of consciousness. Intentionality by itself is insufficient to organize the vast complexities of society and additionally requires a system of rules and the assignment of meaning to the artifacts that play a pivotal role in daily life. A legal system that apportions property rights comprises but one form of a social construct.

 

Putting Things into Place

 

In patent law we generally refer to elements and functional relationships as creating a unity having aspects of physical state, topological configuration, physical attribute, morphological feature, connection, or causal effect. Suppose I invent a doorstop in the shape of a cylinder three inches long and one-half inch in diameter, (a) made of brass and consisting of on one end (b) a fastened rubber bumper and on the other end (c) an integral tapered screw that fastens the doorstop to a wall. Assume that the invention (synonymous with the intellectual property object) comprises the combination of a, b, and c. The doorstop is the physical device, but the intellectual property is the unity comprised of the combination of elements a, b, and c. Intellectual property separates into two categories. The first category (ontological) delineates the existence and the properties that attach to a certain kind of material object. In our example the entities: brass element, doorstop, rubber bumper, and screw are the kinds of categories of things with which patents typically deal. The second category (jurisprudential) comprises a legal system that deals with a class of rights, powers, and interests that attach to the material object. However, because this second category deals with objects in a juridical way, it implies that social aims such as morality are part of the blend. Material objects are constructs of sensory representations. Intellectual properties are the external conditions in material objects that impart distinct observable (perceptible) properties. Again, we have a divide in that material objects can be observed to have distinct physically measurable properties on the one hand and to have legally recognized expressive (in the case of copyright) or inventive properties on the other hand. In respect of the physical properties, we assign a use function. In respect to the legal function, we assign a status function. As new forms of technology appear in our midst, the law creates new forms of intellectual property. However, within its various denominations the law recognizes essentially only five categories of intellectual property: ideas, products, processes, names, and expressions.3 And, except for the “idea” generally and “names” associated with goodwill, most other forms of intellectual property rights embed themselves in tangible artifacts. Patent law particularly deals with a type of personal property that flows directly from the type of artifact instantiated.

 

A right in property exists as a social convention in that it simply represents our collective intention to deal with the related object according to a set of rules. For example, one might have patented an invention (referring here to the thing itself) where the rights to the invention have been spelled out in a document we refer to as a patent or more formally Letters Patent. However, the actual invention embodies a process (a series of physical changes), an article of manufacture, a machine, or a composition of matter. Ownership in the patent permits the holder to exclude others from making, using, or selling the underlying claimed artifact or process. Patents deal with the physical world, and therefore owning a patent permits the monopolization of physical artifacts and processes having the inventive features it claims. The inventions may be both ontologically objective (having

observer-independent features such as a steel shaft) and ontologically subjective (used as a common nail). Note that function is always ontologically subjective and therefore observer-dependent .4 As described, our nail is epistemically objective because it contains observer independent features. However, when the very point of invention is a physical event that only symbolizes what something means, much of the epistemic objectivity is lost. Money, contracts, calculations, and states of affairs (e.g., games and business methods) are but a few of an unending list of such items. Here we invent symbols that stand to represent something specified. We utilize an essential feature of an instrument (in a contract: rights, duties, and obligations) or a result of some logical process (a computer output) that has meaning in a context generally accepted by a particular group, but not necessarily universally accepted.

 

During the last 25 years there has been an ever-increasing acceptance of the proposition that certain kinds of knowledge, some based in mathematics and others based in biology, deserve wider intellectual property protection. The most significant example has been the court’s allowance of newer life forms (albeit created from human ingenuity) and business method patents (mathematical computations in the form of programs executed on a computer).To the chagrin of some in the scientific community, this represents a decided encroachment on subject matter that was once regarded as public information, creating what some predict are obstacles to progress. 5 Undoubtedly the tensions among diverse interests will continue to influence the economy, scientific progress, and moral reaction. However, without critical consideration of the divide between things that belong to the classes of ontologically objective, ontologically subjective, epistemically objective, and epistemically subjective, we risk confounding nature, abstract ideas, and social constructs, and placing off-limits products and processes that under historical considerations might have inured to the benefit of the commons.

 

Endnotes

1. See U.S. PATENT AND TRADEMARK OFFICE,MANUAL OF PROCEDURE, PATENTABLE

SUBJECT MATTER – COMPUTER-RELATED INVENTIONS Ch. 2106, Sec. IV.B.1. et seq.

2. John Searle suggested the idea that social constructs are tied to our physical being. See JOHN R. SEARLE,THE CONSTRUCTION OF SOCIAL REALITY (Free Press, 1995).

3. DAVID R. KOEPSELL,THE ONTOLOGY OF CYBERSPACE (Open Court Pub., 2000).

4. In in re Lowry, 32 F.3d 1579 (Fed. Cir. 1994), regarding data structure stored in a computer memory, the court held that if the claimed invention required the information to be processed by a machine and not

through human consciousness, it would be patentable subject matter.

5. See LAWRENCE LESSIG, FUTURE OF IDEAS:THE FATE OF THE COMMONS IN A

CONNECTEDWORLD (Random House, 2002).

Catalysts in Fuel Purification

 

Joseph R. Carvalko

Copyright, 2008

 

 

Reliable internal combustion engines and power generation performance require fuels free from contaminants such as water and organic and inorganic solids. For example, a diesel fuel that contains water can freeze fuel lines when ambient temperatures drop below 32 degrees Fahrenheit. Fuel that contains water also reduces the efficiency of engine performance since at least some energy dissipates in the process of heating the water and not in combustion. In many instances water particulate contribute to engine failure, specifically in engines that utilize dispensing nozzles and injectors to atomize fuel for the combustion chambers. Solid particulate in fuel also decreases the performance and increases the wear due to frictional forces on the internal engine parts. Diesel driven engines, generators and fuel oil burners represent but a few of the products that benefit from devices that remove water and other constituents in petroleum fuels.  

 

Many devices exist for separating fuel from foreign constituents; however, most of these are expensive and rely on filter media and other moving components. For example, marine power vessel applications use centrifugal separators for improving the quality of fuel oils. A centrifuge is a machine that subjects fuel and its foreign constituents to a centrifugal force. A continuous centrifuge passes fuel and its foreign constituents in a steady stream through part of the centrifuge apparatus where it is subjected to centrifugal forces and continuously discharges separated components. With little difference in principles of operation these machines perform the function of clarifying fuel, separating fuel constituents and purifying fuel so as to remove water, organic matter and solids from the fuel.

Centrifuges having moving parts are expensive to build and require costly maintenance, yet the larger marine vessels require cleansing of the less costly low-grade fuels to a degree that justifies the expense. For less demanding applications there are several products that offer some level of separation based on conventional filtration made of fine mesh or paper. These are lower cost apparatuses that require frequent filter changes. Although this invention is drawn to any centrifuge, another solution, which is addressed below, does not contain any moving parts or removable filters, but relies on the forces produced by external fuel pumps in combination with various plates, baffles, weirs and ports as fuel passes through the fuel system.

The advantages of having purified the fuel are to reduce wear on moving parts, reduce carbon deposits, and improve exhaust emissions as well as improve combustion efficiency and performance. The purification of the fuel can be especially beneficial, if the fuel is to be brought into contact with a catalyst, since contaminates tend to eventually coat the catalysts and cause them to become ineffective.

Petroleum is a complex liquid solution of gases, liquids and solids comprised of long molecular hydrocarbon chains. The size of the molecules determine the grade of the fuel which ranges from: gas, having between one and five carbon atoms per molecule, to the usual fuel oils, having between five and 18 carbon atoms per molecule to paraffin and pitch or asphalt which number as many as 20 or more carbon atoms per molecule. In fact, the crude oil remaining after the volatile hydrocarbons have been removed are mainly comprised of paraffin and asphalt. These heavier components are generally undesirable in a mixture designed for combustion engines.

Precombustion treatment catalysts have been show to break down the heavier undesirable long chain hydrocarbon chains into smaller chains with greater combustion qualities. These may take the form of liquid or solid formed catalysts that interact with the fuel. At least one class of catalysts referred to as oxidation catalysts can provide improved combustibility reactions at ambient temperatures.

 Traditional oxidation catalysts are of two general types: noble metals and non-precious metals. some combinations of the two general types also have been found to exhibit low temperature catalytic activity. Commercially available catalysts manufactured from rhenium and manganese, heterogeneous metal alloys comprised of tin, antimony, lead and mercury, and others containing soluble platinum group metal compounds have shown to improve the performance of the combustion engine.

When carbon-containing fuels, such as gasoline and diesel fuel oil are burned in the presence of air, nearly all the carbon combines with oxygen to form carbon dioxide, CO.sub.2, but amounts of CO carbon monoxide form, as well, depending on the air available. Carbon monoxides are not desirable in the combustion process. In platinized tin-oxide catalysts the material catalyzes as a result of a reaction of the carbon monoxide CO and the dioxide molecule O.sub.2. If the tin surface is exposed to a mixture of CO and O.sub.2, CO quickly covers it, since CO molecules absorb on vacant surface sites. The presence of tin-oxide alters this affect since only the O.sub.2 molecule is absorbed, whereas the CO does not. Therefore it is critical that the fuel be as free from foreign constituents such as large amounts of water, carbons, sediment, oxides and non combustion organic solids as possible. It stands to reason that catalyst type treatments are more efficient when the reaction is effectuated is free from all but trace amounts of water (which incidentally are useful in some catalytic reactions) and other impurities. By combining the features of a fuel purifier with a catalyst the benefits to a combustion engine are greatly enhanced.

Catheters for Urinary Incontinence (From a description of a Carvalko patent)

 

Joseph R. Carvalko

Copyright, 2008

 

It is well recognized in the field of Urology that individuals may during the course of their lives  lose control of their urinary function. This loss of control may be temporary or permanent, depending upon the cause of the loss of urinary function. Temporary loss may be caused by a disease entity, which is curable by medical or surgical treatment, whereas permanent loss of control may be caused by an incurable disease entity or physical trauma resulting in partial or total paralysis of the muscles that cause normal urination. The bladder is a dome shaped container with muscular walls and which accepts urine from the kidneys for temporary storage. During normal voluntary urination, the muscles in the bladder wall contract and simultaneously the sphincter muscle surrounding the opening in the bladder that communicates with the urethra relaxes so that the urine stored in the bladder is released into the urethra and expelled from the body.

The causes for loss of normal voluntary control of the urination process are manifold and the consequences are indeed severe. If urine cannot be periodically expelled from the bladder, the urine becomes stagnant and bacteria multiply at an exceedingly rapid rate, resulting in infection of the bladder. Chemical changes in the urine due to the infection cause painful urination and can also cause general debilitation of health. If, after infection occurs, the urine retention is still permitted to continue for any considerable length of time beyond normal voluntary urination frequency, ascending infection can occur, that is the infection in the bladder spreads to the ureters (a muscular duct or tube conveying the urine from a kidney to the bladder or cloaca) and to the kidneys, thereby causing still more serious consequences, such as failure of one or both of the kidneys to function. If the kidneys do not function to cleanse the blood of impurities and form urine, uremia results and death occurs in the absence of the availability of recently developed artificial kidney machines. If, on the other hand, the kidneys continue to function and fill the non-draining bladder with urine, the bladder can burst, thereby emptying the bacteria laden urine into the abdominal cavity. The usual result of this is peritonitis, which is an inflammation of the peritoneum, the membrane that lines the abdominal cavity, and the results of inflammation of this membrane are always serious. The time between the occurrence of acute peritonitis and death may be only a matter of a few hours to a few days depending upon the severity of the infection. Septicemia, an infection of the blood, is another serious consequence of excessive retention of urine in the bladder, since the bacteria in the bladder, ureters and kidneys invades the blood through the minute blood capillaries in these organs.

Obviously other complications, bodily disorders and dysfunctions and serious consequences, too numerous to mention herein, can result from failure of proper urination. It is obvious that constant periodic drainage of the bladder to eliminate urine and other body waste material is essential not only to good health but to maintaining life itself.

Techniques of treatment for loss of normal voluntary control of the urination process are relatively few in number. Depending on the nature of the cause, a super-pubic technique involving surgery may eliminate the drainage problem in some circumstances. Since surgery is involved, this treatment is traumatic and severe, and is utilized only when absolutely necessary. Drug therapy is effective in some cases to promote drainage of the bladder, but due to the relatively few causes of loss of voluntary control which will respond to drugs and the ever presence of undesirable side effects, drug therapy is considered to be a relatively ineffective method of dealing with the problem.

2. Necessity for Practice of Invention

Since the loss of voluntary control over the urinary function is typically a secondary effect caused either by disease or trauma, it has become a well established medical practice to relieve the urinary drainage problem mechanically by means of the process of catheterization. If the primary cause of the loss of voluntary urination control is from a curable disease, the catheterization process is maintained on a temporary basis only for so long as necessary until voluntary control returns. If the cause of loss of control is permanent, as in the case of paralysis such as with paraplegics and quadriplegics, the catheterization process must be maintained on a permanent basis in order to maintain life.

In the catheterization process, a tube or catheter is inserted into and through the urethra until the remote or distal end is located within the bladder, usually being disposed just past the sphincter muscle at the juncture of the bladder with the urethra. The near or proximal end of the tube remains outside of the body and there is thus provided a path or channel through which urine in the bladder can drain as the need arises. Once a catheter has been passed through the urethra and inserted into the bladder, it is generally necessary, in connection with the disease and trauma conditions described above, to have the catheter retained in the urinary tract with the distal end of the catheter in the bladder, such retention being in the order of several days to several weeks without removal. Catheters which are designed for use a function are called urinary retention catheters and are typically provided by including an inflatable balloon at the distal end of the catheter which is deflated during insertion of the catheter and which is inflated by passing a fluid, typically water or saline solution through a passage within the catheter, called an inflation lumen. Thereafter, fluid from the bladder drains through the main passage of the catheter, called the drainage lumen.

3. Problems of Catheterization

Inserting a catheter into the urethra can be a painful and traumatic experience, the degree of pain and trauma depending on the construction of the catheter being inserted, the technique for inserting it, and the experience and the skill of the person performing the insertion whether that person is the doctor or other individual. Since the designers of catheters have no control over the last named characteristic, the present invention has been developed with the first two characteristics principally in mind, but also with consideration for the fact that the catheter may on many occasions be inserted by other individuals who would not be as skilled as the doctor. The reason for possible pain and trauma is that the urethra, whether male or female, is a relatively tortuous tube of varying cross-sectional dimensions and is normally collapsed along most of its length. The upper portion of the urethra is provided with sphincters or valves which it enters the bladder neck. The female urethra is somewhat shorter and straighter than the male urethra but otherwise both are much the same. The urethra is a very delicate organ and cannot withstand any appreciable amount of lateral pressure against the urethral wall without causing some degree of rupture. Since the urethra has a high concentration of pain sensing nerve endings, any distortion, whether of change in size or shape, is very uncomfortable at the least and usually painful, and any trauma to the urethra is accompanied by a great deal of pain. It is not uncommon for the patient to have to be anesthetized in order to insert many common urinary catheters. In addition to the pain, bacteria in the urethra can enter the blood stream if the urethra is traumatized, with the same result discussed above in connection with rupture of the bladder.

Extensive research and development have been carried out over a long period of time in the design of catheters, and a large number of different catheter designs appear in the medical and patent literature. The reason for this is that design characteristics for urinary drainage catheters are highly conflicting from the standpoints of patient discomfort and functionalism. In order to reduce the probability of trauma and resulting pain to the urethra as well as discomfort to the patient during long periods of retention, a urinary drainage catheter should be as thin as possible, highly flexible and pliant, and have a soft rounded end. From the functional standpoint, on the other hand, the catheter must be of sufficiently thick and rigid construction that it will not buckle while being passed through the urethra, it should have as wide a drainage opening and lumen as possible to promote complete drainage and prevent clogging, and the end should be free and unobstructed in order to facilitate the use of the catheter as an aid to the insertion of diagnostic and treatment instrumentation into the bladder. Of great importance is the fact that a retention catheter must have an effective means for retaining the catheter in place in the bladder which will not obstruct either the flow of urine or substantially the complete drainage of urine therefrom, but at the same time has sufficient retaining capability that a patient, particularly a senile patient, cannot forcibly pull the catheter out of the bladder and into the urethra thereby causing extreme damage thereto. Further, any urinary drainage catheter must be formed of a material totally inert to the effects of urine and other waste materials, be capable of absolute sterilization, and be manufacturable to strict tolerances, in high volume and at low cost considering the disposable nature of the product. Still other criteria may be apparent to those skilled in the art.

4. The Prior Art

In view of the foregoing diverse criteria, the basic design of commercially available retention catheters has changed very little over the past half century, and the well known Foley retention catheter is almost universally used by doctors, hospitals, nursing homes, etc. to alleviate loss of voluntary bladder control U.S. Pat. Nos. 2,892,458; 2,936,761; 3,292,627 and 3,394,705 are mentioned as illustrating typical prior art catheters which are usually formed of relatively thick walled construction so as to be insertable without buckling, have a rounded solid tip to prevent trauma to the delicate lining of the urethra, and have side openings adjacent the tip to communicate the interior of the bladder with the drainage lumen. The prior art catheters also have an inflatable balloon portion beyond the drainage opening in order to retain the catheter in place. These catheters, and many more like them, are undesirable from the standpoint that considerable pain may be experienced in introducing a relatively wide, semi-rigid catheter into a relatively narrow urethra. Further, the small side openings can easily clog from clots of sediment material which collects in the bottom of the bladder. Still further, as a result of the solid tip, it is impossible to pass diagnostic or treatment instrumentation through the catheter for the purpose of inspecting or treating the interior of the bladder. The capability of inserting instrumentation through the catheter after it is in place is very important in the urological practice since prior treatment involves the use of anesthesia in order to insert steel tube instrumentation as has been the practice.

In U.S. Pat. No. 2,677,375, recognition was given to the desirability of removing the fixed rounded tip so as to provide a drainage opening adjacent the inflatable retention balloon. Strips are provided across the opening for engagement by an inserting stylet. This construction is disadvantageous in that the strips are likely to obstruct the passage of sediment clots and thus clog the drainage opening, and even more harmful is the fact that the insertion of such a blunt end as is apparent in this device is almost certain to cause considerable trauma to the delicate wall of the urethra. It is also apparent that it would be at least difficult, if not impossible, to pass instrumentation through this catheter in view of the strips across the open end. Such a device would be wholly unacceptable to the urological practitioner.

A significant aspect of the present invention is the provision of an improved stylet which is utilized both during insertion of the catheter through the urethral passage and thereafter as a cleaning implement. U.S. Pat. Nos. 2,118,631; 2,164,926 and 2,856,934 are cited as representative of prior art stylets which are utilized solely to assist in inserting the catheter, the first two being of the typical push rod type and the third being of the filiform type. Although the use of a stylet to insert the catheter obviates the problem of bucking of the catheter during insertion and thereby permits the catheter to have a relatively thin wall construction, the push rod type used in conjunction with a closed end catheter is undesirable from the standpoint that there is no way of accurately ascertaining when the end of the catheter enters the bladder because the stylet blocks the drainage opening or the drainage lumen or both. The filiform device is undesirable because of the possibility of injuring the delicate wall of the urethral passage during the insertion of the filiform unless great care is exercised because of the fact that the filiform is of necessity very thin and therefore must be relatively rigid and sharp nosed. Other disadvantages of this technique for inserting drainage catheters will be apparent to those skilled in the art.

Another significant improvement of the present invention is the novel construction of the inflatable retention balloon to cause the open end of the catheter to expand and widen, which assists in drainage and in retention. Some consideration has been given to this problem as evidenced by U.S. Pat. No. 2,892,458 mentioned above, as well as by U.S. Pat. Nos. 3,438,375 and 3,889,686. In the first patent, the balloon is constructed to be less inflatable adjacent the lateral drainage opening through the catheter wall so that the balloon cannot overlie and block the opening if the catheter tends to settle in the bladder or is pulled by the patient. In U.S. Pat. No. 3,438,375, the opposite theory is applied and the balloon is constructed to purposely overlie the lateral drainage but be spaced therefrom so that the delicate lining of the bladder cannot be drawn into the opening by sub-atmospheric pressure. In U.S. Pat. No. 3,889,686, a lateral opening is provided below the balloon as well as above so as to promote better drainage. All of these techniques have inherent disadvantages in that they present design problems which are difficult to overcome in manufacturing the catheter, they are not nearly as effective in practice as eliminating the lateral drainage opening altogether so that the inflation balloon presents no interference problem whatever, and they cannot function to allow movement of a stylet to indicate when the balloon is inflated because the rounded tip closes the longitudinal end of the drainage lumen.

Identifying Patterns In Electronic Data Structures (extract)

 

Joseph R. Carvalko

Copyright, 2008

 

  

Users of information technology deal with countless unwanted emails, unwanted text messages and crippling new viruses and worms every day. This largely unnecessary phenomenon decreases worker productivity and slows down important network applications. One of the most serious problems results from the ever increasing volume of spam. As such, recipients of email as well as the service providers offer various solutions to reduce its proliferation on the World Wide Web. However, as spam detection becomes more sophisticated, spammers invent new ways to circumvent detection. For example, methodology provides a centralized database for maintaining signatures of documents having identified attributes against which emails are compared. However, spammers now modify the content of their email either slightly or randomly such that the message itself may be intelligible, but it evades detection under various anti-spam filtering techniques.

 

Currently, at least 30 open relays dominate the world, bursting messages at different rates and different levels of structural variation. Because certain types of email mutate or evolve, as exemplified by spam, spam-filtering detection algorithms must constantly adjust to be effective. In the case of spam email, for example, the very nature of the spam corpus undergoes regime changes. Therefore, clustering optimality depends heavily on the nature of the body of the data (its corpus) and the changes it undergoes.

 

Document clustering and classification techniques provide for an overview or identification of a set of documents based upon criteria that amplifies or detects  patterns within its content. In some applications these techniques lead to filtering unwanted email and in other applications they lead to effective search and storage strategies. An identification strategy may for example divide documents into clusters so that the documents in a cluster are similar to one another and are less similar to documents in other clusters, based on a similarity measurement. One refers to the process of clustering and classification as labeling. In highly demanding applications, such as high traffic, labeling can greatly improve the efficiency of an enterprise, especially for storage and retrieval applications. However, the clustering and classification algorithms must be stable, fast, and efficient as they pertain to the electronic data on which they operate.

 

The objective of any effective document detection scheme identifies attributes common to a class of emails. A detection scheme might therefore key off a common element representative of spam, e-vites, or mailing lists. In plain words, given two electronic data streams associated with a document, a system needs to discriminate in some meaningful way how similar or close two messages are.

 

To work effectively as a detector for different categories of email, a classifier should strive to establish the parameters of a distance function (typically a metric that separates two classes of emails). Generally the choice of a metric is dictated by the choice of classifier or filter. In regards to filters, given two messages, X and X′, a system can generate electronic data streams or signature arrays, (f1, f2, . . . , fn) and (f′1, f′2, . . . , f′n ) where n is the number of filters.

 

Comparing these two data sets requires specification of a metric and a threshold for each filter in the set. Thus, for example, the two messages belong to the same spam class, if and only if all of the following conditions hold simultaneously:

d(f1, f′1 ) < τ1

d(f2, f′2 ) < τ 2

.

.

.

d(fn, f′n ) < τ n

 

where the τ n is the numerical threshold values suitably chosen for each of the filters and d represents a function of the distance between two filter values.

 

The Nilsimsa Signature (“NS”) method counts 3-gram occurrences with the same hash values in the message body of an email and serves as an example of one spam detection schema [see, http://ixazon.dynip.com/~cmeclax/nilsimsa.html]. NS ignores text mutations because they are deemed statistically irrelevant. Given a message, NS produces a sequence of 64 hexadecimal numbers. For instance, if NS consisted only of four bits, the distance between the two codes 1001 and 0001 would be 1 because only the first bits of the two signatures differ. An important aspect of NS is that changing the input text does not change all of the entries in the code. Small changes to the input text causes all of the entries in the code to change.

 

One method to detect spam creates a hash value referred to as MD5, which is found to be relatively ineffective as a means for identifying spam because once a message is changed slightly, the hash value changes significantly. Although these methods work effectively for identifying absolutely identical messages, the nature of spam detection evasion means that the senders of spam will continue to incorporate differences that will produce significantly different MD5 outcomes (a simple permutation of two letters in a “pure” message will render an MD5 check completely useless for purposes of spam detection).

 

Using several filters reduces false positives by subjecting email messages to more scrutiny. If each of its 64 values were considered a single filter, NS could be viewed as a set of filters. A metric might then be defined as the number of differing bits for each separate number. The drawback of such a method is that the distance thus defined cannot exceed four, because the numbers are hexadecimal. Each filter by itself is quite primitive. The method might be made more robust by increasing the radix as achieved through changing the algorithm or by joining adjacent filters into an overall larger filter and thus decreasing the number of filters.

 

In addition to deploying several filters, a problem persists in that it remains a requirement that thresholds be chosen. Unfortunately, no systematic approach exists to choose the threshold even for one filter other than through an heuristic process of visual inspection of how emails are tagged as similar to one another and through trial and error as to what produces an acceptable detection of documents having identified attributes. When several filter values must be taken into account, filtering depends on all the thresholds and, therefore, finding the optimal thresholds through such a trial and error process presents a formidable undertaking. Three solutions are possible: (1) hard-code the thresholds into the software; (2) perform optimization checks manually and regularly; and/or (3) perform optimization automatically.

 

To succeed with the first solution one has to solve the optimization problem based on the current spam trends. However, even if it were to succeed in filtering a certain type of email today, no guarantee exists that it will be adequate tomorrow. The second solution may prove laborious.