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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."
'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.'
Sounds familiar to the kind of logic that Donald Knuth employs when discussing software patents. He tried reaching out to the EU Patent Office in an effort to avoid making algorithms patentable--he feels this has been a mistake in America. He recently sent the EU Patent Office Commissioner a 1994 letter he had originally sent to the United States Patent Office about patenting software. 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. The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not. Knuth sums himself up nicely: 'Basically I remain convinced that the patent policy most fair and most suitable for the world will regard mathematical ideas (such as algorithms) to be not subject to proprietary patent rights. For example, it would be terrible if somebody were to have a patent on an integer, like say 1009, so that nobody would be able to use that number "with further technical effect" without paying for a license. Although many software patents have unfortunately already been granted in the past, I hope that this practice will not continue in future. If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace.'
Maybe the right way to approach this was to claim that general purpose processors are only capable of executing extremely complex mathematical algorithms--which should not be patentable. Therefor the software that runs on general purpose processors should not be patentable.
My work here is dung.
In any case, patent law could use a rule like: if the merits of the patent do not substantially improve other (non-patented) methods, then the patent is invalid (i.e., the technology would be free to use by anyone else). This would rule out all the compatibility problems, with codecs, but also with file systems (FAT, anyone?) In my opinion, such a rule would be very fair, and useful as well.
An algorithm cannot be a "specific machine", as an algorithm isn't patentable subject matter in the first place. For years, software has been patented by using dodges like "A device consisting of CPU, storage, input device, output device executing algorithm X". Bilski makes that dodge invalid.
Some software patents are even sillier, in that they patent the _media_ containing the software. Some of Microsoft's FAT patents are that way, for instance. I don't know if that dodge has been tested in court since Bilski (or even before)
I'm not entirely comfortable with Bilski. I think the Bilski test has thrown out the baby with the bathwater.
Not, in the case at hand... this patent sounds like 100% pure unadulterated bathwater. But nevertheless...
I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.
There are some really clever algorithms out there, though. Algorithms that are not at all obvious, and really advance the state of the art. If Quicksort was invented today, wouldn't it deserve a patent?
But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.
But can't we do better? Can't we find an "obviousness" test that works?
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.
Yeah. Even more so, the policy decision behind excluding novel and nonobvious mathematical algorithms from patentable subject matter has to do with thoughtcrimes... Say I get a patent on 2+2=4. You read my patent specification where I describe in extensive detail how 2+2 comes to equal 4. You understand it and think, "gosh, now I know that 2+2=4". Did you just infringe my patent, merely by thinking it? We don't want that outcome.
Bilski had two routes for patentability in process claims: "transform" something and "tied to a specific machine". The former is because we don't want to invalidate "process" patents on tempering steel, for example. The latter is because, once tied to a specific machine, you're not infringing the patent by thinking. If my claim above was "A method of adding, wherein a memory register on a computing device containing data identified as the number 2 is added, by an addition engine configured on the computing device, etc.", then you could never infringe it with your brain, or even a pad of paper and a pencil.
In this patent, the claim was "a computer aided method", but that's it for specifics. That's not a meaningful limitation. For instance, if my claim was "a computer aided method of adding 2+2 to equal 4", and you use wordpad instead of a pad of paper and pencil, did you just infringe? Sure. That starts to go back towards the thoughtcrime end of things, though. So, for policy reasons, we want to limit patents on things like this in a meaningful way that requires a specific machine.
The legal ruling saying that says that it must work with a "specific machine" is more recent than the ruling that says that processes can be patented. Said ruling appears to be intentionally limiting the ruling that allowed processes to be patented. Additionally, there is reason to believe that the judges in that case felt that the ruling allowing processes to be patented should be reversed, but made a more limited ruling partially because of the nature of the case before them and partially in order to allow for courts to gradually correct the abuses that resulted from the previous ruling. IANAL, but I play one in my head, so this is just my interpretation of the various writings I have seen on this subject.
The truth is that all men having power ought to be mistrusted. James Madison
I was reading along and contemplating whether I wanted to make an appreciative/agreeing comment, until I ran into the part about MP3s.
I believe most readers would agree that MP3 "really is patentable"
Programmers overwhelmingly reject software patents, and I think they would generally cite the MP3 patents as a perfect example of such invalid patents.
The latest Supreme Court ruling touching on software patents was Diamond v Diehr. People on the pro-patent side often point to that case to affirm their position because in a binary yes/no way the ruling was in favor of the patent applicant, but in fact Diamond v Diehr was an extremely anti software-patent ruling.
You're right about "transformation" being a crucial issue, although you somewhat miss on the "product" angle. The Supreme Court stated that the clue to the patentability of a process patent was the transformation of an article to a different state or thing. The case was ruling upon an industrial rubber manufacturing process, and all of the language is clearly envisioning a physical-process physically-transforming a physical-article into a different state or thing. Note that the end product does not need to itself be patentable. A classic process patent would be such as the one for refining aluminum-ore into pure metallic aluminum. Aluminum metal is not a patentable invention, but transforming ore into refined metal is a patentable process.
They also explicitly ruled that an algorithm was not a patentable process, and explicitly warned that "insignificant postsolution [physical] activity" cannot be used to turn it into a patentable process. The MP3 patent is nothing more than a patent on the pure-math algorithm for mathematically transforming one sequence of numbers into a different (typically shorter) sequence of numbers. The act of sending that MP3'd sequence of numbers out to a speaker (typically sounding like music) would be an extremely insignificant postsolution (post software) physical activity, and that insignificant physical activity cannot be hijacked to transform non-patentable MP3 math into a patentable physical process claim.
What the Diamond v Diehr majority ruling actual stood for was the rather simple position that an otherwise valid patentable physical process was not magically REMOVED from being patentable subject matter simply because it added or included a math calculation somewhere along that physical process.
And earlier Supreme Court ruling (Benson) had already laid out the proper method for considering a process claim that included software. Any possible algorithm (any possible software) was to be treated as a familiar part of prior art, and the claim examined to see if it disclosed any OTHER inventive contribution. You can attach a computer to some physical devices preforming some physical transformation and obtain a patent if it discloses some novel non-obvious inventive contribution beyond the presumed-familiar-presumed-prior-art software.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of number
Would the same principle apply then to electronic hardware? Transistor radios, Xeon processors, flat screen TV sets? They're just taking voltages of certain characteristics and transforming them into voltages with other characteristics. Sure, we hook up the transistor radio to a speaker, but that's not the core of the patented design.
If voltages, how about energy? Quantities of atoms?
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