Physicality in the Information Age : a normative perspective on the patent eligibility of non-physical methods

There has been much conjecture of late as to whether the patentable subject matter standard contains a physicality requirement. The issue came to a head when the Federal Circuit introduced the machine-or-transformation test in In re Bilski and declared it to be the sole test for determining subject matter eligibility. Many commentators criticized the test, arguing that it is inconsistent with Supreme Court precedent and the need for the patent system to respond appropriately to all new and useful innovation in whatever form it arises. Those criticisms were vindicated when, on appeal, the Supreme Court in Bilski v. Kappos dispensed with any suggestion that the patentable subject matter test involves a physicality requirement. In this article, the issue is addressed from a normative perspective: it asks whether the patentable subject matter test should contain a physicality requirement. The conclusion reached is that it should not, because such a limitation is not an appropriate means of encouraging much of the valuable innovation we are likely to witness during the Information Age. It is contended that it is not only traditionally-recognized mechanical, chemical and industrial manufacturing processes that are patent eligible, but that patent eligibility extends to include non-machine implemented and non-physical methods that do not have any connection with a physical device and do not cause a physical transformation of matter. Concerns raised that there is a trend of overreaching commoditization or propertization, where the boundaries of patent law have been expanded too far, are unfounded since the strictures of novelty, nonobviousness and sufficiency of description will exclude undeserving subject matter from patentability. The argument made is that introducing a physicality requirement will have unintended adverse effects in various fields of technology, particularly those emerging technologies that are likely to have a profound social effect in the future.

Is there a physicality requirement at Common Law? : a survey of the Pre-NRDC cases discussing ‘Manufacture’

One of the fundamental issues that remains unresolved in patent law today, both in Australia and in other jurisdictions, is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether Australian patent law contains a physicality requirement. Despite being recently considered by the Federal Court, this is arguably an issue that has yet to be satisfactorily resolved in Australia. In its 2006 decision in Grant v Commissioner of Patents, the Full Court of the Federal Court of Australia found that the patentable subject matter standard is rooted in the physical, when it held that an invention must involve a physical effect or transformation to be patent eligible. That decision, however, has been the subject of scrutiny in the academic literature. This article seeks to add to the existing literature written in response to the Grant decision by examining in detail the key common law cases decided prior to the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, which is the undisputed authoritative statement of principle in regards to the patentable subject matter standard in Australia. This article, in conjunction with others written by the author, questions the Federal Court’s assertion in Grant that the physicality requirement it established is consistent with existing law.

Physicality in Australian Patent Law

It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods – namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.

Physicality and cooperative design

CSCW researchers have increasingly come to realize that the material work setting and its population of artefacts play a crucial part in coordination of distributed or co-located work. This paper uses the notion of physicality as a basis to understand cooperative work. Using examples from an ongoing fieldwork on cooperative design practices, it provides a conceptual understanding of physicality and shows that material settings and co-workers’ working practices play an important role in understanding the physicality of cooperative design.

Physicality, difference, and the challenge of representation: Werner Herzog in the Light of the new waves

This chapter looks into the gap between presentational realism and the representation of physical experience in Werner Herzog's work so as to retrieve the indexical trace – or the absolute materiality of death. To that end, it draws links between Herzog and other directors akin to realism in its various forms, including surrealism. In particular, it focuses on François Truffaut and Glauber Rocha, representing respectively the Nouvelle Vague and the Cinema Novo, whose works had a decisive weight on Herzog’s aesthetic choices to the point of originating distinct phases of his outputs. The analyses, though restricted to a small number of films, intends to re-evaluate Herzog’s position within, and contribution to, film history.

Medeleven

Medeleven was a practice-based research work that challenged conventional notions of how audiences ‘experience’ contemporary dance. It resulted in a 40 minute ‘experiential’ performance that inverted the traditional ‘passive’ presentation paradigm by situating the audience centrally within the creative process. The ‘traditional presentation paradigm’ was inverted in numerous ways including: asking the audience onstage with the performers, placing swings onstage for the audience to play on during the performance and guiding the audience through backstage corridors before entering onstage – all of which added elements of physicality, agency and liminality to the performance not usually available to audience members of contemporary dance. Five dancers moved throughout the space allowing the audience to choose where and how they engaged with this work and the swings were utilised both as a performance space and for audience seating. In addition to these spatial variations, the quadraphonic soundscore created distinct ‘environments’ throughout the stage space that varied individual experience possibilities. By positing performance as an experiential phenomenon, the pivotal objective of this work was to create a live-art experience that extended its performativity to include audience members as active meaning-makers, challenging both their role within this paradigm and their expectations of contemporary dance. The work produced strong responses from the audience with surveys indicating the presentation format, as well as the construction of the work, changed audience experience and ability to connect with the dance work. The research suggested that, in addition to existing research on dance audiences, barriers to engagement with contemporary dance may include how the art is constructed and where the audience is positioned within that creative framework. The research builds upon artistic practices being undertaken throughout the world that challenge the notion of existing ‘passive’ performance paradigms via creative ‘engagement’ with audience.

‘Storyline patents’: are plots patentable?

The most interesting questions that arise in patent law are the ones that test the boundaries of patentable subject matter. One of those questions has been put forward recently in the United States in an argument in favour of patenting the plots of fictional stories. United States attorney Andrew F Knight has claimed that storylines are patentable subject matter and should be recognised as such. What he claims is patentable is not the copyrightable expression of a written story or even a written outline of a plot but the underlying plot of a story itself. The commercial application of ‘storyline patents’, as he describes them, is said to be their exclusive use in books and movies. This article analyses the claims made and argues that storylines are not patentable subject matter under Australian law. It also contends that policy considerations, as well as the very nature of creative works, weigh against recognition of ‘storyline patents’.

The Federal circuit in Bilski : the machine-or-transformation test

In a much anticipated judgment, the Federal Circuit has sought to clarify the standards applicable in determining whether a claimed method constitutes patent-eligible subject matter. In Bilski, the Federal Circuit identified a test to determine whether a patentee has made claims that pre-empt the use of a fundamental principle or an abstract idea or whether those claims cover only a particular application of a fundamental principle or abstract idea. It held that the sole test for determining subject matter eligibility for a claimed process under § 101 is that: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. The court termed this the “machine-or-transformation test.” In so doing it overruled its earlier State Street decision to the extent that it deemed its “useful, tangible and concrete result” test as inadequate to determine whether an alleged invention recites patent-eligible subject matter.

The patentability of non-physical inventions : lessons from the United States

Patent systems around the world are being pressed to recognise and protect challengingly new and exciting subject matter in order to keep pace with the rapid technological advancement of our age and the fact we are moving into the era of the ‘knowledge economy’. This rapid development and pressure to expand the bounds of what has traditionally been recognised as patentable subject matter has created uncertainty regarding what it is that the patent system is actually supposed to protect. Among other things, the patent system has had to contend with uncertainty surrounding claims to horticultural and agricultural methods, artificial living micro-organisms, methods of treating the human body, computer software and business methods. The contentious issue of the moment is one at whose heart lies the important distinction between what is a mere abstract idea and what is properly an invention deserving of the monopoly protection afforded by a patent. That question is whether purely intangible inventions, being methods that do not involve a physical aspect or effect or cause a physical transformation of matter, constitute patentable subject matter. This paper goes some way to addressing these uncertainties by considering how the Australian approach to the question can be informed by developments arising in the United States of America, and canvassing some of the possible lessons we in Australia might learn from the approaches taken thus far in the United States.

The bondage of an imposed visual discourse : understanding the built environment's influence on the 'oldest-old' aged care residents' sense of peace

This study investigates the influence of the built environment upon residents' sense of familiarity, concept of self and thus, their facilitation of place through the theory of "The Bondage of Imposed Visual Discourse". Simone de Beauvoir's theory "The Bondage of Feminine Elegance" provides the conceptual understanding of the visual discourse between the physicality of clothing and the wearer's personal identity. This fashion theory is transposed to explore the influence of the built environment's physicality upon aged care residents' personal identity. This paper presents findings from a study of professionals' opinions in reference to the built environment of permanent residential aged care for the 'oldest-old' of Australia. The researcher conducted qualitative interviews with four participants: an architect, occupational therapist, nursing home facility manager and an aged care lobbyist in the South-East Queensland. This study is structured towards proposing "place-focused" qualitative design principles to encourage residents' sense of place through the built environment. These proposed principles are addressed with reference to existing Standards and Principles outlined by the Australian Government.

Physical effect in patent law

This thesis addresses one of the fundamental issues that remains unresolved in patent law today. It is a question that strikes at the heart of what a patent is and what it is supposed to protect. That question is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether patent law contains a physicality requirement. Resolving this issue will determine whether only traditional mechanical, industrial and manufacturing processes are patent eligible, or whether patent eligibility extends to include purely intangible, or non-physical, products and processes. To this end, this thesis seeks to identify where the dividing line lies between patentable subject matter and the recognised categories of excluded matter, namely, fundamental principles of nature, physical phenomena, and abstract ideas. It involves determining which technological advances are worth the inconvenience monopoly protection causes the public at large, and which should remain free for all to use without restriction. This is an issue that has important ramifications for innovation in the ‘knowledge economy’ of the Information Age. Determining whether patent law contains a physicality requirement is integral to deciding whether much of the valuable innovation we are likely to witness, in what are likely to be the emerging areas of technology in the near future, will receive the same encouragement as industrial and manufacturing advances of previous times.

Mathematical modelling of LiFePO4 cathodes

LiFePO4 is a commercially available battery material with good theoretical discharge capacity, excellent cycle life and increased safety compared with competing Li-ion chemistries. It has been the focus of considerable experimental and theoretical scrutiny in the past decade, resulting in LiFePO4 cathodes that perform well at high discharge rates. This scrutiny has raised several questions about the behaviour of LiFePO4 material during charge and discharge. In contrast to many other battery chemistries that intercalate homogeneously, LiFePO4 can phase-separate into highly and lowly lithiated phases, with intercalation proceeding by advancing an interface between these two phases. The main objective of this thesis is to construct mathematical models of LiFePO4 cathodes that can be validated against experimental discharge curves. This is in an attempt to understand some of the multi-scale dynamics of LiFePO4 cathodes that can be difficult to determine experimentally. The first section of this thesis constructs a three-scale mathematical model of LiFePO4 cathodes that uses a simple Stefan problem (which has been used previously in the literature) to describe the assumed phase-change. LiFePO4 crystals have been observed agglomerating in cathodes to form a porous collection of crystals and this morphology motivates the use of three size-scales in the model. The multi-scale model developed validates well against experimental data and this validated model is then used to examine the role of manufacturing parameters (including the agglomerate radius) on battery performance. The remainder of the thesis is concerned with investigating phase-field models as a replacement for the aforementioned Stefan problem. Phase-field models have recently been used in LiFePO4 and are a far more accurate representation of experimentally observed crystal-scale behaviour. They are based around the Cahn-Hilliard-reaction (CHR) IBVP, a fourth-order PDE with electrochemical (flux) boundary conditions that is very stiff and possesses multiple time and space scales. Numerical solutions to the CHR IBVP can be difficult to compute and hence a least-squares based Finite Volume Method (FVM) is developed for discretising both the full CHR IBVP and the more traditional Cahn-Hilliard IBVP. Phase-field models are subject to two main physicality constraints and the numerical scheme presented performs well under these constraints. This least-squares based FVM is then used to simulate the discharge of individual crystals of LiFePO4 in two dimensions. This discharge is subject to isotropic Li+ diffusion, based on experimental evidence that suggests the normally orthotropic transport of Li+ in LiFePO4 may become more isotropic in the presence of lattice defects. Numerical investigation shows that two-dimensional Li+ transport results in crystals that phase-separate, even at very high discharge rates. This is very different from results shown in the literature, where phase-separation in LiFePO4 crystals is suppressed during discharge with orthotropic Li+ transport. Finally, the three-scale cathodic model used at the beginning of the thesis is modified to simulate modern, high-rate LiFePO4 cathodes. High-rate cathodes typically do not contain (large) agglomerates and therefore a two-scale model is developed. The Stefan problem used previously is also replaced with the phase-field models examined in earlier chapters. The results from this model are then compared with experimental data and fit poorly, though a significant parameter regime could not be investigated numerically. Many-particle effects however, are evident in the simulated discharges, which match the conclusions of recent literature. These effects result in crystals that are subject to local currents very different from the discharge rate applied to the cathode, which impacts the phase-separating behaviour of the crystals and raises questions about the validity of using cathodic-scale experimental measurements in order to determine crystal-scale behaviour.

Ethnographic notes on visualization practices in tissue engineering

Visual information is central to several of the scientific disciplines. This paper studies how scientists working in a multidisciplinary field produce scientific evidence through building and manipulating scientific visualizations. Using ethnographic methods, we studied visualization practices of eight scientists working in the domain of tissue engineering research. Tissue engineering is an upcoming field of research that deals with replacing or regenerating human cells, tissues, or organs to restore or establish normal function. We spent 3 months in the field, where we recorded laboratory sessions of these scientists and used semi-structured interviews to get an insight into their visualization practices. From our results, we elicit two themes characterizing their visualization practices: multiplicity and physicality. In this article, we provide several examples of scientists’ visualization practices to describe these two themes and show that multimodality of such practices plays an important role in scientific visualization.

Dynamics of affordances and implications for design

Affordance is an important concept in HCI. There are various interpretations of affordances but it has been difficult to use this concept for design purposes. Often the treatment of affordances in the current HCI literature has been as a one-to-one relationship between a user and an artefact. According to our views, affordance is a dynamic, always emerging relationship between a human and his environment. We believe that the social and cultural contexts within which an artefact is situated affect the way in which the artefact is used. Using a Structuration Theory approach, we argue that affordances need also be treated at a much broader level, encompassing social and cultural aspects. We suggest that affordances should be seen at three levels: single user, organizational (or work group) and societal. Focusing on the organizational level affordances, we provide details of several important factors that affect the emergence of affordances.

Gender, sexuality, and rurality in the mining industry

Sexuality is a subject that has been, at best, marginal in the significant body of literature that has examined gender and mining in contemporary Western nations. This is despite the fact that academics have circled, if not almost bumped into the topic in closely related discussions of hegemonic masculinity and mining work, and of patriarchal familial relations and mining communities. This scholarship has documented what has been and remains women’s primary relationship to mining—that is, as a “mining wife.” How patriarchal relations are manifest in and emerge from this state of affairs has been critiqued with research on the gendered implications of housing arrangements in mining towns, the division of household labor, changing shift-work mining rosters, and the gendered consequences of strikes and mine closures (Williams 1981; Gibson 1992; Gibson-Graham 1996; Rhodes 2005; McDonald, Mayes, and Pini 2012). Despite the centrality of the heterosexual relationship—and indeed heteronormativity—to these discussions, scholars of gender and mining have had little to say on the subject of sexuality. In response to this lacuna, this chapter takes an exploratory lens to the subject of sexuality and the mining industry. We approach the task from the perspective that the mining industry is gendered as masculine. That is, definitions of mining mobilize around masculinized notions of physicality, technical competence with machinery, and strength, as well as emphasize the harshness and dirtiness of the work (Mayes and Pini 2010).