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Judge Invalidates Software Patent, Citing Bilski
bfwebster writes "US District Court Judge Andrew Gilford (Central District of California) granted a summary judgment motion in DealerTrack v. Huber et al., finding DealerTrack's patent (US 7,181,427) — for an automated credit application processing system — invalid due to the recent In re Bilski court decision that requires a patent to either involve 'transformation' or 'a specific machine.' According to Judge Gilford's ruling, DealerTrack 'appears to concede that the claims of the '427 Patent do not meet the "transformation" prong of the Bilski test.' He then applied the 'specific machine' test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that 'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.' Judge Gilford analyzes the claims of the '427 patent, notes that they state that the 'machine' involved could be a 'dumb terminal' and a 'personal computer,' and then concludes: 'None of the claims of the '427 Patent require the use of a "particular machine," and the patent is thus invalid under Bilski.' DealerTrack apparently plans to appeal the ruling. Interesting times ahead."
What is "non-mathematical software"?
Let's hope this is a sign of things to come. With some luck, we might even see various patents on codecs invalidated, thus allowing much more freedom for which formats to use with the HTML5 <video> element...
Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.
Dan Aris
Fun. Free. Online. RPG. BattleMaster.
His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.
While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.
I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.
Any combination of algorithms in software is itself an algorithm. Knuth isn't arguing obviousness or novelty; he's arguing that software isn't patentable subject matter at all, no matter how non-obvious or novel it may be.
But isn't that exactly the kind of software that *doesn't* deserve patent protection because of how mundane and obvious it is?
unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client. IANAL nor do I play one on TV, but I work with enough of them to be able to spot a bad one. As soon as they mentioned specific machine, it seems their lawyer curled up and died, when he should have been arguing that the specific machine test does in fact pass as without the algorithms the process falls flat, and it is in fact the algorithms that constitute the specific machine in the patent. not the CPU or computer. If this does become a precident however, and this judgement does define a machine as "hardware" a LOT of patents are going to become invalid or challengable. and not just software patents. which means it's really just a matter of time before it's overturned.
Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.
Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.
As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.
I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.
When Phil Katz invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.
The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.
The position is pretty explicit. The past law was such that if it were a business process or describing an algorithm in the traditional sense (the bulk of software patents do this...) then it wasn't patentable- same goes for that which resides in nature. Bilski puts it back to where it was prior to all the fun and games when it was thought that it was a "good idea" to allow patenting damned near anything. It's not throwing the baby out with the bath water- it's fixing part of what's been broken for a while now.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.
There is a distinct difference between Knuth's logical progression and yours. It's a matter of a few words, which may seem nit-picky, but what manner of logic doesn't boil down to pure semantics?
Knuth's "software cannot be patented" argument:
* Math cannot be patented.
* Algorithms ARE math.
* Software IS a series of algorithms strung together (as an aside, a series of algorithms interacting is itself an algorithm)
* Ergo, software cannot be patented
Your counter-argument via analogy:
* Atoms cannot be patented
* Machines ARE MADE OF one or more atoms strung together
* Ergo, machines cannot be patented
Note the emphasized words: ARE versus ARE MADE OF. Math is not a tangible object, so there is no concept of "is made of" in that context. Atoms are tangible, albeit on a microscopic scale. Still, that's enough to say that a machine IS MADE OF specific atoms. However, you cannot say that a machine IS an atom. You can say that a machine IS a group of atoms, but that's not enough to warrant a patent; a machine is more than that. The group of atoms is crafted into unique and complex shapes, and those shapes are put together and mechanical force is applied to make it accomplish a task. That is what warrants a patent.
I know exactly what you are about to think: aren't you doing the same thing to the series of algorithms? The answer is no. Math cannot be "crafted" into a "shape". It can describe a shape, but it is intangible. No mechanical force can act on math, and a solid object cannot be "made of math". An algorithm, quite simply, IS math; no more, no less. You can string together as many algorithms as you like, but all that does is create one larger algorithm. The same cannot be said about a physical object consisting of multiple atoms strung together.
The end result of a software may fall under another system, like copyright or trademark. But the underlying logic is all math, and that cannot and should not fall under patent.
> I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.
What does "mathematical" mean to you, exactly? Seems like you think it means that the software has to use a lot of math you've never heard of to do something complex. Now, I can at least respect the argument that very innovative new processes might merit legal protection, though I think it's a terrible idea because it's unnecessary and it carries a high cost for society. Mathematicians can also make life difficult for you. If I create an equivalence relation between something patented and something not patented, what does the patent control? Have I destroyed the utility of the patent, or does the patent swallow up my "invention" too?
But back to the original point, the division between "mathematical" and "non-mathematical" software is the result of fuzzy-headed thinking by people who don't know what math is. Software is equivalent to math and that link describes how you turn programs into math (and vice versa). There's no such thing as non-mathematical software because there's no such thing as non-mathematical math.
Now I know there are some people, especially that guy at IP Watchdog who was in the news quite a while ago, who think that because they can do a few fancy integrals, partial derivatives, and linear algebra, they know all there is to know about math. But they totally ignore the stuff that's relevant here and probably don't even know what type systems or proof calculi are. Suffice it to say that anyone who thinks they know all there is to know about math is wrong.
"The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not."
Huh? This is completely wrong.
The USPTO has been arguing against the patentability of software since, well, software was first invented. And its main rationale is that the USPTO is ill-equipped to examine software patent applications. Of course, that argument is quite laughable these days, since it has been obligated to examine software patents since State Street Bank v. Signature Financial Group (1998)... it raises many more questions about the USPTO's recalcitrance to get with the times and meet its legal obligations... i.e., the sharp incompetence and chronic failure of the USPTO administration in managing the day-to-day operations of the organization.
The only "definitions" that have been applied to the field were created by the Court of Appeals for the Federal Circuit (CAFC), the appellate court that is solely empowered to hear appeals of district-level decisions in patent cases. That body (and its predecessor, the Court of Customs and Patent Appeals (CCPA)) have issued many different tests over the patentability of software. None have been satisfactory.
There is only one constant holding in the range of varying CAFC decisions over the years: software cannot be categorically rejected as a class of patentable subject matter. This would be a flat contradiction of 35 USC, the body of federal law that empowers the USPTO to issue patents.
But getting to the deeper problem: Software inventions cannot be categorically excluded from patentability because the technological spectrum of "method"-type inventions has a very smooth gradient. Consider:
Everyone seems to agree that a particular circuit is, and should be, patentable. And everyone seems to agree that a completely abstract solution to a completely abstract problem is not, and should not be, patentable. Fair enough.
The logical problem arises when someone (particularly opponents of software patents - Knuth, Stallman, etc.) try to draw a bright line in this list and say, "Everything above this list should be categorically excluded." The problem is that all of these embodiments accomplish the exact same thing in essentially the same way. Sure, there may be various ancillary advantages: cost of implementation, reconfigurability, speed, etc. But technically, they are completely fungible - they are technically equivalent. It is nonsensical and against the logic of technology to try to draw lines in the sand.
Shame on anyone who attempts to invent arbitrary distinctions in this field. In attempting to warp the business of software to suit your ends, you ignore the conclusions of Turing that form the basis of your area of technology.
- David Stein
Computer over. Virus = very yes.
I'd point out that software is covered under copyright. If I make a great new program and you copy it, I can sue under existing copyright laws. Giving that program patent protection "protects" it twice which isn't needed and merely reduces competition. Instead of you needing to write, from scratch, your own competitor to my "great new program," you're locked out of the market because it is patented.
Add to that the vast number of patents that are too vague, aren't enforced until a technology becomes popular (aka patent trolls), or just cover some mundane thing done "over the Internet" or "using a computer," and you can see why people don't like software patents.
My sci-fi novel, Ghost Thief, is now available from Amazon.com.