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''In re Alappat'', 33 F.3d 1526 (Fed. Cir. 1994),〔(''In re Alappat'' ), 33 F.3d 1526 (Fed. Cir. 1994).〕 along with ''In re Lowry'' and the ''State Street Bank'' case, form an important mid-to-late-1990s trilogy of Federal Circuit opinions because in these cases, that court changed course by abandoning the ''Freeman-Walter-Abele Test'' that it had previously used to determine patent eligibility of software patents and patent applications.〔In the ''State Street Bank'' case, the Federal Circuit stated that it now found that the ''Freeman-Walter-Abele'' test "has little, if any, applicability to determining the presence of statutory subject matter." ''State Street Bank & Trust Co. v. Signature Financial Group, Inc.'', 149 F.3d 1368, 1374 (Fed. Cir. 1998). See also John E. McGlynn, '' Patent Law - Patentable Subject Matter and Computer Software Inventions - In re Alappat'', 14 135, 148-50 (1995) ("Conspicuously missing from the Federal Circuit's analysis is an application of the ''Freeman-Walter-Abele'' test. The ''Freeman-Walter-Abele'' test had been developed specifically to deal with patenting of algorithms. It had been consistently applied in previous cases and had served as the basis for the PTO's rejection of Alappat's claims. The Federal Circuit did not even attempt to apply the test. Tucked away in a footnote, the court explained that the ''Freeman-Walter-Abele'' analysis was not improper, but the ultimate issue is whether the claim as a whole is drawn to statutory subject matter. . . . What does raise concern is that by not applying the test, and not attempting to analyze the possibility in any depth, the court failed to apply principles that were created by the Supreme Court in ''Benson'', ''Flook'', and ''Diehr'' and applied by the CCPA in ''Freeman'', ''Walter'', and ''Abele''. . . .Under the reasoning employed in ''Benson'', ''Flook'', ''Diehr'', ''Freeman'', ''Walter'', and ''Abele'' such a claim would have been rejected. Furthermore, in ''Freeman'' and ''Abele'' the CCPA directed that an invention like Alappat's, which did nothing more than transform data from one form to another, did not constitute statutory subject matter. Had the Federal Circuit chosen to apply the ''Freeman-Walter-Abele'' test, or even the principles that underlie the test, the claims would have rejected. . . . ()he impact of ''Alappat'' will be to greatly increase the opportunity to patent software inventions. Claims which previously would have been rejected as nonstatutory subject matter, might now be patented, provided the correct drafting techniques are followed. Under Alappat, mathematically intensive software such as financial software, which previously would have been very difficult to pass under the mathematical algorithm exception, will be statutory subject matter if drafted in means-plus-function format with accompanying structure.").〕 The result was to open a floodgate of software and business-method patent applications,〔Thompson-Reuters Practical Law, (''Software and business methods: should you be patenting them?'' ) ("In 1998 a US appeal court decision (Street Bank'' ) that a computerised method of managing mutual funds was patentable subject matter opened the floodgates for all kinds of business methods, even those not using software, to be patented in the US.").〕〔Univ. of Tex. School of Law, 18th Annual Advanced Patent Law Institute, ("Patentable Subject Matter: Software and Business Methods" ), p. 2 (Oct. 31, 2013) ("After the creation of the Court of Appeals for the Federal Circuit in 1982, the Federal Circuit heard several cases involving the patent eligibility of software related inventions coming to a head with the decision in 1998 in ''State Street Bank'' that seemed to open the floodgates of patents for software, business methods and other related inventions by holding that such patents only needed to provide a "useful, concrete and tangible result" to be patent eligible.")〕 many or most of which later became invalid patents as a result of Supreme Court opinions in the early part of the following century in ''Bilski v. Kappos'' and ''Alice v. CLS Bank''.〔''See'' Robert Sachs, (''Bilskiblog'' ), "#AliceStorm In June: A Deeper Dive into Court Trends, and New Data On Alice inside the USPTO" (July 2, 2015) ("For example, the 73.1% invalidity rate (''Alice'' ) in the federal courts breaks down into 70.2% (66 of 96) in the district courts and a stunning 92.9% in the Federal Circuit (13 for 14).").〕〔''See also'' McGlynn, at 151 ("The impact of ''Alappat'' will be to greatly increase the opportunity to patent software inventions. Previously, claims that recited mathematical algorithms and which had the sole function of converting data, were found to be nonstatutory subject matter. Under ''Alappat'', this same subject matter may be statutory if claimed in means-plus-function format with accompanying structure contained in the specification. ''In re Alappat'' directs patent attorneys to a reliable means to avoid the mathematical algorithm exclusion to statutory subject matter and in so doing creates a tremendous potential for patenting of previously non-patentable computer software inventions.").〕 ==Background== Kuriappan Alappat was an employee of Tektronix, an oscilloscope manufacturer.〔"Also on the brief was Francis I. Gray, Tektronix, Inc." ''Alappat'', 33 F.3d at 1529. "Alappat, Edward E. Averill, and James G. Larsen were employees of Tektronix, Inc. of Wilsonville, Oregon, a manufacturer of electronic test equipment and computer-related equipment." W. Wayt King, Jr., ''The Soul of the Virtual Machine: In Re Alappat'', 2 575, 594 (1995). ''See also'' (Information Law Alert ) (Sept. 9, 1994), quoting Tektronix in-house lawyer explaining why Tektronix brought the case as a test case to establish the patentability of "digital circuitry governed by mathematical formulas."〕 He and two other employees (Edward Averill and James Larsen, but for convenience the three will be referred to collectively as Alappat) devised a form of "rasterizer," which is a device used in a digital oscilloscope to smooth waveform data before displaying the waveform on the oscilloscope screen.〔Rasterisation.〕 (The irregularities in the waveform are called "jaggies.") The invention is a system for improving the appearance of digital oscilloscopes' screen displays by connecting data points smoothly without gaps or jaggies. A digital oscilloscope ordinarily represents data points as isolated points on the screen. Each point occupies a small area on the screen termed a "pixel." It is convenient to connect successive data points on the screen by a line, so that the data appears on the screen as a line graph.〔''See'' 33 F.3d at 1537. The Federal Circuit said: "Employing this anti-aliasing technique eliminates any apparent discontinuity, jaggedness, or oscillation in the waveform, thus giving the visual appearance of a smooth continuous waveform. In short, and in lay terms, the invention is an improvement in an oscilloscope comparable to a TV having a clearer picture." ''Id''. ''See also'' 33 F.3d at 1538: "Without the benefit of Alappat's anti-aliasing system, points 54 and 52 would appear on the screen as separate, unconnected spots. In Alappat's system, the different intensity level at which each of the pixels is illuminated produces the appearance of the line 48, a so-called vector." 〕 There were two problems, however, with these displays. First, the jaggies would create a "staircase effect." Second, random noise superimposed on the signal makes the lines appear to flicker and move up and down or from side to side (which is called "aliasing"). The basic technique to overcome aliasing ("anti-aliasing") generally in use was to lessen the illumination intensity of those pixels more remote from the desired trajectory of the data points, in accordance with some formula or scheme (for example, least squares averaging). Conventional means were well known for varying the amount of energy delivered to the location of a pixel, in order to vary light intensity at the pixel. In a cathode-ray tube (CRT), such as that for an oscilloscope, a beam of electrons is accelerated by an electromagnet coil around the neck of the tube. The electrons' speed (and therefore energy, and therefore illuminating effect) is proportional to the current in the coil at the time the electrons pass through it.〔The technology is discussed in the article Cathode ray tube. An alternative expedient to the electromagnetic deflection of electrons described in the text is electrostatic deflection, using deflection plates.〕 Hence, to implement an anti-aliasing scheme one controls pixel intensity by varying CRT neck coil current in accordance with the scheme. The result is to provide variable illumination intensity for each pixel, so that the pixels closest to the trajectory of the data points on the screen are made brighter, and those farther away, dimmer. The procedure improves the appearance of the display by providing a continuous-appearing and non-jumping waveform.〔''See'' John E. McGlynn, ''Patent Law - Patentable Subject Matter and Computer Software Inventions - In re Alappat'', 14 135, 138 (1995).〕 Alappat devised what appears to be a novel and convenient anti-aliasing scheme—an anti-aliasing algorithm. The specification of the patent application disclosed how to provide a smooth-appearing waveform (something appearing to be a straight diagonal line without jaggies or staircase) by determining illumination intensity of each of the pixels in accordance with the new formula I' = c (1 - (ij / Δy i )). In this formula, c is an arbitrary constant, and the Δ values represent vertical pixel-to-pixel distances on the screen. A user of the system then makes the CRT's neck coil current proportional to I', as calculated according to the foregoing formula. The PTO did not assert that the technology described above is the kind of thing with which the patent laws are concerned, but instead argued that what was claimed was different from that and was not patentable subject matter, because giving the claim its "broadest reasonable interpretation," and because it was drafted entirely in means-plus-function format, "each of the steps in this postulated process claim recites a mathematical operation, which steps combine to form a 'mathematical algorithm for computing pixel information,' and that, 'when the claim is viewed without the steps of this mathematical algorithm, no other elements or steps are found."〔33 F.3d at 1539-40.〕 In other words, Alappat's ''patent application'' described a device within an oscilloscope, that helps to control the oscilloscope's screen illumination in a certain way. But the issue, according to the PTO, was whether the patent claimed merely that thing or claimed something else, as well—something that goes beyond the kinds of thing on which the patent laws grant exclusive rights.〔''See'' dissenting opinion of Archer, C.J., arguing that PTO correctly rejected claim 15 as nonpatentable subject matter, stating—"Coexistent with the usage of these terms (in § 101 ) has been the rule that a person cannot obtain a patent for the discovery of an abstract idea, principle or force, law of nature, or natural phenomenon, but rather must invent or discover a practical "application" to a useful end," and citing, among other cases, ''Diamond v. Diehr'', 450 U.S. 175, 185, 187-88 (1981); ''Parker v. Flook'', 437 U.S. 584, 589, 591 (1978); ''Graham v. John Deere Co.'', 383 U.S. 1, 5 (1966) ("the federal patent power...is limited to the promotion of advances in the `useful arts'"); ''O'Reilly v. Morse'', 56 U.S. (15 How.) 62, 132-33 (1853); 1 § 1.01, at 1-5 & n.9 (1993 ed.) ("()n enacting patent legislation, Congress is confined to the promotion of the 'useful arts,' not 'science' (''i.e.'', knowledge) in general.... The general purpose of the statutory classes of subject matter is to limit patent protection to the field of applied technology, what the United States constitution calls 'the useful arts.'"). ''See also'' PTO administrative decision, ''Ex parte Alappat'', 23 U.S.P.Q.2d (B.N.A.) 1340, 1346 (B.P.A.I. 1992), rev'd, 33 F.3d 1526 (Fed. Cir. 1994).〕 Claim 15, the only independent claim in issue in the case,〔33 F.3d at 1538 ("Claim 15, the only independent claim in issue, reads...").〕 read:
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