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Judge Invalidates Software Patent, Citing Bilski

Posted by kdawson on from the first-domino dept.

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."

7 of 252 comments (clear)

  1. Similar to Donald Knuth's Logic by eldavojohn · · Score: 5, Interesting

    '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.

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    My work here is dung.
    1. Re:Similar to Donald Knuth's Logic by eldavojohn · · Score: 5, Interesting

      What is "non-mathematical software"?

      Well, I've read a lot of Knuth's stuff and though I don't see quite eye to eye with him, I definitely agree with his views on this. The source of the idea of non-mathematical software seems to come from patent attorney Eugene Quinn:

      I have been criticized quite a lot for statements I have made that computer software is not the same as math, and I simply cannot back away from that. Nevertheless, as I have read through comments provided to Groklaw I am not so sure that my critics and I are as far apart on this position as one would belief.

      And yes, he goes so far as to cite E. W. Dijkstra's three claims:

      • So much for the care needed to keep the arguments manageable: we can summarize it by stating that in programming mathematical elegance is not a dispensable luxury, but a matter of life and death.
      • The programmer applies mathematical techniques in an environment with an unprecedented potential for complication; this circumstance makes him methodologically very, very conscious of the steps he takes, the notations he introduces etc.
      • Much more than the average mathematician he is explicitly concerned with the effectiveness of this argument, much more than the average mathematician he is consciously concerned with the mathematical elegance of his argument.

      And he claims these statements do not invalidate his idea that non-mathematical software should be patentable! Knuth and probably 90% of software developers will argue that Quinn is either ignorant or insane.

      And these are the people arguing the case and ensuring software patents stand. Worse yet, Eugene teaches the most popular patent bar review course in the US. Ignorance begets ignorance.

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      My work here is dung.
    2. Re:Similar to Donald Knuth's Logic by MenThal · · Score: 5, Insightful

      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.

    3. Re:Similar to Donald Knuth's Logic by geminidomino · · Score: 5, Funny

      THERE was his mistake...

      If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace

      He told them if they did it, they'd be up to their asses in Americans! Hell, I wouldn't do it either, and I *AM* an American.

    4. Re:Similar to Donald Knuth's Logic by russotto · · Score: 5, Insightful

      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.

      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.

    5. Re:Similar to Donald Knuth's Logic by Anonymous Coward · · Score: 5, Insightful

      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.

  2. Software is equivalent to math. by Anonymous Coward · · Score: 5, Informative

    My degree is in mathematics. There's no such thing as non-mathematical software. There is mathematical proof of this. There's a nice equivalence theorem for the two, and the website linked shows the results of that equivalence.

    I repeat: there's no such thing as "non-mathematical" software, because it is equivalent to math. The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1. And yes, people really do claim utter nonsense like that sometimes, especially those who don't understand the fact that infinite sequences like 0.99999[repeating] don't have a last digit by virtue of being infinitely long (if an infinite list had a last element, it would be a contradiction in terms, because part of the definition of infinite is that for every element x, there is a successor of x).

    One might as well claim that pi is exactly 3.