New USPTO Test Could Limit Software-Based Patents

bizwriter writes "The high tech industry has been waiting for a Supreme Court decision in the Bilski case to decide fundamental questions, like when you can patent software. But there's a new test from the Board of Patent Appeals and Interferences (PDF) that just became precedential, meaning that it offers new grounds on which the US Patent and Trademark Office can deny patents on machines that use mathematical algorithms."

Comments

Sudden outbreak of common sense?

[BhaKi]

I've been waiting for something like this.

Re:Sudden outbreak of common sense?

[adamchou]

Apparently, the patent office is on a streak of common sense recently...

Re:Sudden outbreak of common sense?

[ppanon]

More likely, they could tell which way the wind was going to blow and decided to try to stay ahead of the curve and in control of the decision making process. They held off as long as possible to keep the cash from applications coming in. However, now that the writing is on the wall, they're trying to avoid the court setting a major precedent restricting their processes - never mind that it was a (bad) court decision that allowed business and software patents in the first place. It's almost like they were a public for-profit corporation.

Re:Sudden outbreak of common sense?

[vegiVamp]

Don't worry, they'll get over it as soon as the corporate money stops flowing.

Simple solution

[Anonymous Coward]

Deny them all. Software shouldn't be patented.

Re:Simple solution

[Sir_Lewk]

Well since all software is math, this would effectively ban all software patents.

Re:Simple solution

[GrantRobertson]

As eloquently illustrated here: http://xkcd.com/435/, everything is math. So, the question, as always is where does one draw the line. There is no reason to throw the baby out with the bathwater.

Re:Simple solution

[causality]

As eloquently illustrated here: http://xkcd.com/435/, everything is math. So, the question, as always is where does one draw the line. There is no reason to throw the baby out with the bathwater.

How about this: you may not patent a work that is (or could be) protected by copyright. You can't copyright a physical invention like a new machine, drug, or industrial process. You can copyright manuals and other documents that describe those things, but those documents in and of themselves are not the subject of patents.

Re:Simple solution

[Bill_the_Engineer]

That makes so much sense... Now if only it was true!

Re:Simple solution

[Paeva]

Unfortunately, if this logic actually held, then software would never have been patentable. An algorithm, if you explain it in a certain way, can sound a whole lot like a machine.

Re:Simple solution

[morgan_greywolf]

You can't copyright a physical invention like a new machine, drug, or industrial process. You can copyright manuals and other documents that describe those things, but those documents in and of themselves are not the subject of patents.

But you can both copyright and patent a machine's visual design, which itself can be described in a document, but the copyright and patent would be on the visual design itself, not the document. So there is precedent for software being both copyrightable and patentable at the same time.

To really complicate things, visual designs can even be trademarked in some countries (including the U.S.)

Re:Simple solution

[nschubach]

A software program is simply an instruction manual created to be read by a computer. I've said it before, programs/algorithms are copyrightable, but should not be patentable. Period.

Re:Simple solution

[causality]

You can't copyright a physical invention like a new machine, drug, or industrial process. You can copyright manuals and other documents that describe those things, but those documents in and of themselves are not the subject of patents.

But you can both copyright and patent a machine's visual design, which itself can be described in a document, but the copyright and patent would be on the visual design itself, not the document. So there is precedent for software being both copyrightable and patentable at the same time.

To really complicate things, visual designs can even be trademarked in some countries (including the U.S.)

What you describe is how the system currently is. What I offered was a proposal for how the system might be improved, so naturally it won't reflect the current reality. Still, I like the idea of choosing one. Anytime a work might have multiple forms of intellectual property protection (copyright, patent, trademark, etc), the owner may choose only one. So you may copyright your software but may not also patent it. Or you can patent your software, but then we're free to pirate it :-).

Re:Simple solution

[Halo1]

As eloquently illustrated here: http://xkcd.com/435/, everything is math.

No. We can describe/approximate almost all sciences using math, just like we can describe them using English or any other language. That does not mean that everything is math or linguistics.

So, the question, as always is where does one draw the line. There is no reason to throw the baby out with the bathwater.

That baby already drowned ages ago.

Re:Simple solution

[GrantRobertson]

But what is the point of making that arbitrary distinction? Simply imposing arbitrary rules with no purpose other than to make the system appear simpler, is meaningless. Most everyone here is a technical person in some way: networks, software, hardware... The same principles apply here as in any complicated system. Usually you have to have a complicated system in order for it to appear simple to the user. Many here seem to want to believe problem with IP law is merely that it is too complicated, and thus offer simplistic solutions to, well, simplify the system. The real problem is that IP law is like a legacy mainframe system that has had decades of hacks piled on top of it and then had a web based interface slapped onto it as well. It needs to be ripped out and something else designed from scratch to replace it. Not in that order, of course.

The final solution may not be so very simple as many here often propose. But it should be coherent, and that is the key.

Re:Simple solution

[GrantRobertson]

That baby already drowned ages ago.

Perhaps true. But we still need to give it an official burial and make a new baby.

Re:Simple solution

[causality]

As eloquently illustrated here: http://xkcd.com/435/ [xkcd.com], everything is math.

Our scientific fields all use mathematics as a language to describe the phenomena they investigate. That does not mean those phenomena ARE math, or are composed of numbers. Like logic, math is a descriptive and deductive tool. I believe you are confusing the map with the territory on this one.

To put it a more facetious way, I can use English to describe how to build a house. That does not mean the home is made of my words, for they are not nearly so physically sturdy as wood, metal, and concrete.

Re:Simple solution

[Jah-Wren Ryel]

If slashdot was still giving out mod points to people who don't use javascript, I would have modded you up.

Re:Simple solution

[Anonymous Coward]

Horse crap. That comic says "purity" which is not the same thing anyway.

Math is the language of expression for the results of research in science/engineering (compute the curve of the graph) and is used to predict future results. However, patents don't cover the math itself in those fields, they cover a specific application of it, probably with some actual creativity thrown in (shapes that are more practical like the hexagon design of a nut instead of being circular; also, realising that you could apply the formula to produce the useful result in the first place). Software on the other hand is the math, there is usually no clear separation between the implementation and the derivation that lead to it.

And, again, software is already protected by copyright and is the only field to "enjoy" double protections. [You can't patent a story idea (eg. romance-comedy) and you can't copyright a vacuum cleaner design, why does software deserve both?]

Anyway, this is a sweet move on the USPTO's part, it's nice to know that they aren't completely asleep at the wheel. These new criteria seem to be specifically for the purpose of forcing applicants to narrow the scope of their patent applications, hopefully we won't see more vague crap like 'a mechanism for using a data-entry interface to enter uniquely identifying credentials to access a system' (passwords, also would cover smartcards and just about anything else) [I made this example up but it isn't far off].

Re:Simple solution

[mounthood]

Well since all software is math, this would effectively ban all software patents.

Correspondence is not equivalence. If you digitize the Mona Lisa you could say it's a binary string, or a number, or an image, or the definition of a Turing machine. The context is what defines the significance. Saying that every grain of sand on a beach has a corresponding number doesn't mean that a sandy beach is really just a bunch of numbers, and saying that every computer program has a corresponding mathematical algorithm doesn't mean that computer programming is just mathematics.

None of that means the USPO won't take the chance to stop patenting software, but that'll be a political decision, not something based on an abstract correspondence.

Re:Simple solution

[causality]

But what is the point of making that arbitrary distinction? Simply imposing arbitrary rules with no purpose other than to make the system appear simpler, is meaningless.

The entire concept of copyright, patent, etc. is completely arbitrary. It's not the natural product of the rules of physics. It is something human beings made up for their own purposes. Therefore, the important question is not whether it's arbitrary, but whether it continues to serve those purposes. Making it as simple and robust as possible is a step in the right direction.

Many here seem to want to believe problem with IP law is merely that it is too complicated, and thus offer simplistic solutions to, well, simplify the system. The real problem is that IP law is like a legacy mainframe system that has had decades of hacks piled on top of it and then had a web based interface slapped onto it as well. It needs to be ripped out and something else designed from scratch to replace it. Not in that order, of course.

Why do you suppose a legacy mainframe with hack after hack, patch after patch applied to it would be a problem? That's easy. Because the constant hacking and patching introduces additional complexity. The complexity arises from the need to add new functionality that the original creator did not anticipate while at the same time not breaking the existing code. By contrast, redesigning something from scratch and accounting for everything you learned from all the hacking and patching gives you an opportunity to design it as simply as possible.

I agree that the IP system needs to be replaced. We can do that all at once, but this is not realistic politically. Realistically, the best we can do is to take steps in that direction. Throwing out some of the existing complexity and replacing it with simplicity is a step in that direction.

Re:Simple solution

[steelfood]

No, not everything is math. Entropy is something math cannot yet account for. Until mathematics can model physical systems perfectly, there'll be a huge gap between mathematics and reality. And that's what this comic strip is actually trying to say.

Re:Simple solution

[jbengt]

But you can both copyright and patent a machine's visual design

Don't confuse a design patent with a utility patent, they are really not the same thing.

Re:Simple solution

[GrantRobertson]

While I do agree with you on a technical level, the person to whom I was replying had said that "all software is math." I was simply showing the logical extension of that statement and way of thinking. My point, in the end, is that regardless of whether software is math or not, a more considered line needs to be drawn as to whether something should be patentable or not. Although I agree that most software patents are total BS, I do not believe that NO software should be patentable. There are some software approaches that are truly unique and not obvious which someone worked very hard to figure out and perfect. I believe those should be protected (if the inventor wants to protect them). Unfortunately, the USPTO has been giving out patents for the idea of having a certain feature rather than a particular implimentation of that feature.

Re:Simple solution

[Anonymous Coward]

You keep using that word, eloquence.. I do not think it means what you think it means.

Re:Simple solution

[GrantRobertson]

The entire concept of copyright, patent, etc. is completely arbitrary. It's not the natural product of the rules of physics. It is something human beings made up for their own purposes.

Of course this is a bit of a fallacy of equivocation on the word "arbitrary." In general, and in the way I used it, "arbitrary" means "with no reasonable consideration, given the context." You are redefining it to mean "not adhering to immutable laws of physics." There is quite a difference there. Then you are using that "straw man" to argue against.

I am sure we can all agree that the definition of "Arbitrary" itself can, in a way, be arbitrary. If it is applied in a reasonable way within the given context then "arbitrary" would not be arbitrary.

That said, I agree with the rest of what you said. In an ideal world we could do as I suggest: Bury our dead baby and make a new one. Just as we would not simply rip out a mainframe, we could not simply scrap all of current IP law. However, simplistic solutions will definitely NOT solve the problem and I grow weary of hearing them.

Re:Simple solution

[sjames]

Is there a baby in the bathwater?

Re:Simple solution

[sjames]

Unfortunately, the patent office is so inept in the examination of software that it thinks the algorithmic equivalent of a simple lever is a dazzlingly brilliant new invention. Further, it thinks that simple combinations equivalent to using a rope and pulley to actuate a lever is an ingenious invention rather than just a blindingly obvious combination of two ancient ideas.

Re:Simple solution

[causality]

While I do agree with you on a technical level, the person to whom I was replying had said that "all software is math." I was simply showing the logical extension of that statement and way of thinking. My point, in the end, is that regardless of whether software is math or not, a more considered line needs to be drawn as to whether something should be patentable or not. Although I agree that most software patents are total BS, I do not believe that NO software should be patentable. There are some software approaches that are truly unique and not obvious which someone worked very hard to figure out and perfect. I believe those should be protected (if the inventor wants to protect them). Unfortunately, the USPTO has been giving out patents for the idea of having a certain feature rather than a particular implimentation of that feature.

"Everything is math" as stated in the post to which I replied != "all software is math", for the reason that "software" != "everything". My response was on that basis alone.

About whether software should be patentable, we need not speculate too much. There are European countries where software cannot be patented. The relevant question is whether this has caused their software and IT industries to collapse, and it has not. So it has already been demonstrated that software patents are not an essential component of a working economy. The burden of proof is therefore on anyone who suggests that the USA is a special case, that it cannot live without them even though other countries can.

That's good enough for me, although those with vested interests (and those who believe the marketing of same) won't like the simplicity of this observation.

Re:Simple solution

[causality]

Of course this is a bit of a fallacy of equivocation on the word "arbitrary." In general, and in the way I used it, "arbitrary" means "with no reasonable consideration, given the context." You are redefining it to mean "not adhering to immutable laws of physics." There is quite a difference there. Then you are using that "straw man" to argue against.

Next time quote with context please. The quote with context looks like this:

The entire concept of copyright, patent, etc. is completely arbitrary. It's not the natural product of the rules of physics. It is something human beings made up for their own purposes. Therefore, the important question is not whether it's arbitrary, but whether it continues to serve those purposes.

I said that the question is whether intellectual property concepts serve the purposes for which they were created. That is a reasonable consideration.

That said, I agree with the rest of what you said. In an ideal world we could do as I suggest: Bury our dead baby and make a new one. Just as we would not simply rip out a mainframe, we could not simply scrap all of current IP law. However, simplistic solutions will definitely NOT solve the problem and I grow weary of hearing them.

That might apply to overly simplistic solutions. What I advocate is that it be as simple as possible but no simpler. Any degree of complexity that is truly necessary is acceptable from this point of view. That's why I said "Making it as simple and robust as possible is a step in the right direction." It's also why I did not say "making it too simple to where it cannot serve its purpose is a great idea." Is this non-controversial only to me?

Re:Simple solution

[Anonymous Coward]

A software program is simply an instruction manual created to be read by a computer.

So you agree software + computer == machine. Software (unlike math) is real, tangible bits that control a real machine (computer). Therefore software is also machine. And hence, software should be patentable, just like your regular machines.

How many software inventors come up with new mathematical algorithms today? Hardly any since mathematics is a very mature field. Most inventions are new machines created by combining existing algorithms or machines perform a task.

Re:Simple solution

[GrantRobertson]

There are European countries where software cannot be patented. The relevant question is whether this has caused their software and IT industries to collapse, and it has not. So it has already been demonstrated that software patents are not an essential component of a working economy. The burden of proof is therefore on anyone who suggests that the USA is a special case, that it cannot live without them even though other countries can.

Very good point. The first step, in designing any new system, is asking, "Do we need this system at all?"

Re:Simple solution

[TemporalBeing]

But what is the point of making that arbitrary distinction?

But it's not arbitrary. Patents by design were suppose to be for tangible things, with Copyrights for intangible things; never the two should intertwine. That actually works very very well; until you get the lawyers and PHB's involved that want to protect everything in every possible way - so they intertwined them and now we have the chaotic mess that we have. We need to separate them again.

Re:Simple solution

[causality]

There are European countries where software cannot be patented. The relevant question is whether this has caused their software and IT industries to collapse, and it has not. So it has already been demonstrated that software patents are not an essential component of a working economy. The burden of proof is therefore on anyone who suggests that the USA is a special case, that it cannot live without them even though other countries can.

Very good point. The first step, in designing any new system, is asking, "Do we need this system at all?"

I think acknowledging the truth of this means that you and I are never going to have a career in politics :-).

Re:Simple solution

[Anonymous Coward]

Now there is a more interesting topic - Making Babies!

Re:Simple solution

[Anonymous Coward]

No, that's only good enough as the basis for an xkcd comic, not for a meaningful discussion. To say "Everything is math" is not equivalent to saying "Everything is described by math". The former assertion is fine within the context of fields of study, but incorrect in terms of physical objects. The latter assertion is potentially correct, once we figure out "everything" and all the math needed to describe it.

Consider a patent on some kind of quick-connect adapter for high-pressure air hoses, a "tangible" device. Assuming you could come up with a set of equations to perfectly describe the device, you cannot in some magical way "solve" those equations to produce the actual device. This is not Logopolis. The equations are not the device.

In contrast, software really is math. No need to decide where to draw the line between software and tangibles - a bright line already exists.

- T

Re:Simple solution

[nschubach]

That's the most screwed up logic I've heard today... software is a machine because software + computer == machine? You realize that's like saying water is a plant cause water + seed == plant.

Its a little too late...

[cosm]

Sure, the patent office has it rough, sorting a gajillion [technical term] applicants all wanting a patent for their "unique idea", with the majority really just wanting a foothold for litigation riches. Don't get me wrong, there are definitely honest attempts at securing one's interests and not getting your own pride and joy "unique idea" stolen, but I'll be damned if the USTPO hasn't awarded some of the dumbest, most wide-ranging generalizations to companies that patent spam thousands upon thousands a year. The latter mentioned issue has been going on long before the dawn of the digital, so I feel its too late to correct the problem in the current system.

Re:Its a little too late...

[reebmmm]

...with the majority really just wanting a foothold for litigation riches.

Contrary to this popular belief, lots of patent applicants want a patent to start their business and many others want to have a portfolio for defensive purposes. I'll also throw this out there, most of the patent applicants are not the same party that ends up litigating the patent. Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.

The most notorious group of patent litigators are usually companies that have acquired the patent for a nominal amount from the original inventors either through a bankruptcy, auction, or, occasionally, via a firesale when a company is in dire straights. Once they have it, they have little or no emotional attachment to the invention and there is little life left in the patent (term is about to expire) so they don't worry about making broad sweeping allegations of infringement for fear of invalidating the patent. They also don't fear invalidating the patent because they don't have any incentive to use it defensively since they have no products of their own.

Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.

Re:Its a little too late...

[Opportunist]

I'll be damned if the USTPO hasn't awarded some of the dumbest, most wide-ranging generalizations

In Australia John Keogh managed to patent the wheel. It was later struck down (probably because of prior art, dunno for sure...), but it was issued.

Re:Its a little too late...

[rolfwind]

and many others want to have a portfolio for defensive purposes.

This alone speaks to the brokeness of the system.

Re:Its a little too late...

[Halo1]

Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.

And all money invested in drafting those patents, applying for them, reviewing them and renewing them is a massive waste of both private and government resources that could have been spent on actually useful stuff.

Re:Its a little too late...

[nschubach]

government resources that could have been spent on actually useful stuff.

Where have you been?

Re:Its a little too late...

[Halo1]

government resources that could have been spent on actually useful stuff.

Where have you been?

In a world that's not ruled by Faux News.

Re:Its a little too late...

[morgan_greywolf]

Quick and easy patent reform: Make the law such that:

1. Only individuals and not corporations may apply for patents.
2. Only the actual inventor can apply for and be granted the patent.
3. Patents cannot be sold, only licensed.

Re:Its a little too late...

[Dragonslicer]

and many others want to have a portfolio for defensive purposes.

This alone speaks to the brokeness of the system.

I dunno, I can see how you could argue that "defensive patents" are in some way the purpose of the system. Instead of all of these technology companies making their knowledge trade secrets, they sign cross-licensing agreements so that both companies involved can use the other's research to make their own products better.

Re:Its a little too late...

[Anonymous Coward]

From your description, it sounds like banning or restricting the sale of patents would solve most of the litigation issues. Of course, this raises several other issues such as what to do with patents when a company is bought by another in whole. Still, banning or restricting the sale of individual patents could bring an end to the bottom feeders that currently infest the system by cutting of their food supply.

Re:Its a little too late...

[reebmmm]

This is a silly proposal.

Only individuals and not corporations may apply for patents.

Only the actual inventor can apply for and be granted the patent.

Well, in the US (unlike the rest of the world), patents are filed in the name of inventor. However, since patents and patent applications are like any personal property, they can be sold. The law really doesn't limit to whom a seller (the individual inventors) may sell his or her patents, but see my point below.

Patents cannot be sold, only licensed.

This wouldn't change a thing. You can structure a license to effectively be a "sale" without calling it a sale. [As an aside, there is a line of cases that distinguish between a license and a "sale of substantially all the rights" (aka an assignment)]. If there is some limit on what part of the whole you're allowed to license then people that intend to "sell" the patent will go right up to that line.

Also, this doesn't make much sense in the real world.

First, if you're a company that employs the inventor, you're going to be pretty annoyed when that inventor walks and takes the invention with him to your competitor.

Second, it also doesn't make sense if you're selling your business, going into bankruptcy, trying to use the patent as collateral for a loan, etc.

Finally, there are probably all kinds of weird tax issues with the license-only, no sale provisions.

Re:Its a little too late...

[Anonymous Coward]

For stupidity sake, let's just pretend you're not trolling. I'm not sure what you're getting at with that comment...

The U.S. Government was given no right to intrude on my life and has stepped well beyond useful.

The U.S. Government, as with any government, by definition, intrudes on your life. As for not being useful, that is your opinion. An opinion shared by a tiny minority of US Citizens

Re:Its a little too late...

[hackingbear]

Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.

That's because the nobody would kill a pig before it grows up. Why wasting money suing a little company having hard time meeting its payroll; wait until it gets big funding or IPO or wait until a big guy stepping on the patent, and then plenty of lawyers will work for you on contingent fee basis.

Re:Its a little too late...

[Anonymous Coward]

The US Government was not set up like every other government for a reason. It's a damn shame people don't realize that anymore. Ignorance is bliss. Try reading the Constitution.

Re:Its a little too late...

[arose]

Instead of all of these technology companies making their knowledge trade secrets, they sign cross-licensing agreements so that both companies involved can use the other's research to make their own products better.

Cartel much?

Re:Its a little too late...

[CityZen]

I think patent law should be modified to disallow patent trolling. Patent holders should be required to license patents for reasonable fees, or else lose the patents.
Of course, the key issue is determining what a "reasonable" fee should be, but I imagine that someone smart enough can come up with a reasonable formula.

Re:Its a little too late...

[mea37]

That's not what "defensive patent" means.

A defensive patent is one you don't actively license or enforce, but that you keep in reserve so that you can sue anyone who happens to have infringed it. You keep this threat in your back pocket in case someone sues you (particularly over IP issues). If you licensed it or used it against someone who hadn't sued you first, it would lose its defensive value.

It is an abuse of the system, and arguably a system that encourages it is broken (though I'm not convinced that any system could outright prevent it). Our system does encourage it by encouraging companies to infrigne patents. The root cause is a broken definition of "willful infringement" that increases penalties for infringing a patent you know about, but doesn't increase penalties for infringing a patent you willfully avoid knowing about.

As is often pointed out, this approach deters companies from doing good-faith patent searches. The risk of being caught "accidentally" infringing a patent doesn't outweigh the cost of negotiating a license; so a patent search really just increases costs in all regards.

But of course, that means you essentially know you're going to infringe some patents some of the time. If you can't elmiinate liability for infringement by being in compliance, then you go for mutually assured destruction - reduce liability by making sure nobody big would ever actually sue you.

Given modern technology it would be reasonable, IMO, to set up a system to facilitate patent searches (lower the cost of doing one) and then define willfull infringement to include infringement that stems from failure to use that system (i.e. "if you knew or should have known"). Then two majors symptoms of a broken system - acidental-on-purpose patent infringement and defensive patents - are at least no longer encouraged by the system, and may go away.

Re:Its a little too late...

[pitdingo]

Huh? No idea where you are going as your statements make zero sense in response to my post.

Re:Its a little too late...

[nschubach]

"The U.S. Government, as with any government, by definition, intrudes on your life."

I think GP means that the U.S. Government by definition is not allowed to intrude on a person's life... thus the "Try reading the Constitution" part of GP's post. Whether or not they do is a different matter. It is my personal belief through reading The Constitution was that it attempts to prevent aristocracy through government and somehow we've managed to fall back into the same routine of governmental (or oligarchical) control over the common person. You can hear it in the political races when someone claims a person isn't experienced enough to be President when all our laws really requires is that a person be natural born and 35 years old. You can pretend that that's to protect the security of our country, but I think we can all see that it's some notion of "climbing the ladder" being the only proper method of conditioning for such a position. In the document framework, the President has such little power that there's no way for him to "legally" mess up because that honor was given to the elected majority in Congress. All the President can technically do is slow things down. (That's a good thing!) Unfortunately though, the President has been slowly lifted from the seat of an executor/check of laws to the instigator/initiator position where people rest their hopes. Not to mention the constant hounding of previous Presidents based on personal activities that didn't align with the "moral" guidelines set by society. Ironically, we're slowly becoming a nation of nobility and title.

Re:Its a little too late...

[Gabrill]

Veal, on the other hand . . . Lots of small companies are snapped up wholesale on the value of their IP. A buyout offer is often the first step in forced acquisition, followed by litigation on any pretext.

Re:Its a little too late...

[Gabrill]

No, "someone" can't. Reasonable is such a subjective term, and varies based on market demand. Also, you are proposing regulated pricing, AKA socialism, and bucking the free market.

Re:Its a little too late...

[Gabrill]

Way to reply completely out of context! Australia has NOTHING to do with the USPTO. Not that plenty of wheel applications haven't gone up before the United States Patent and Trademark Office.

Re:Its a little too late...

[infalliable]

A little off topic, but patents are also written in such a manner that it is difficult to figure out what they actually cover. They're written in lawyer speak, which engineers who need to interpret them don't readily understand. They're written in insanely broad ways to cover as much ground as possible, including the kitchen sink (and therefore say nothing at all).

And it is not uncommon for some of them to use odd language for things so that they're hard to search for. So instead of a patent for binoculars, you have a patent for dual-ocular magnification devices as an example.

Re:Its a little too late...

[infalliable]

"Reasonable fees" are going to be nearly impossible to determine.

The sentiment is right though. You need to make some effort at using the patent and not sitting on it. I'm not sure how you'd prove someone was trying sufficiently, but you could scale the damage awards based on "actual" damage done. This doesn't really fix the issue though as these things are all so dependent on markets and other factors that are not realistically evaluated.

Re:Its a little too late...

[CityZen]

> Also, you are proposing regulated pricing, AKA socialism, and bucking the free market.

No, not at all. The formula could very well be market-based. In fact, you may have hit upon the solution: a market (like the stock market) for patent licenses. Of course, this brings up a host of new issues to solve, but then, what's life for?

Re:Its a little too late...

[CityZen]

I don't think that patent holders should be allowed to escape licensing by claiming that they will bring a product to market themselves. Perhaps they can be given a time window in which to do so. If they are not satisfied with this, then they always have the option of not patenting.

As I wrote in another article, patents & copyrights should serve 2 purposes:
-encourage innovation & creativity by providing a limited period to profit from it.
-add to the public domain after said period expires.

The second part of the deal is generally being forgotten about in this day of "I do what's best for me" (vs. I do what's best for all).

Re:Its a little too late...

[martin-boundary]

Of all the intellectual property concepts, patents are fundamentally the most repugnant.

Whereas trade secrets do no impose any burdens on others, and whereas copyrights at least only apply to actually produced works after the fact, patents are censorship of ideas in other people's heads.

It is fundamentally repugnant to allow some random stranger on the other side of the country to dictate to me what I can and cannot do with the ideas I get in my own head, even for a limited time. It is a form of thought censorship, in many cases retroactive if you didn't know an idea was patented already. Patents should not exist, ever.

Re:Its a little too late...

[jakykong]

As an additional aside, corporations/companies/groups need to be able to patent because many research topics simply can't be handled by individual. Consider medical patents or new methods of silicon fabrication. These are insanely expensive to research (probably for different reasons), such that no individual could reasonably expect to do so. As a result, only companies have enough money, and in that case, no one individual is responsible for the patent.

Everything?

[Tablizer]

Probably ANY algorithm can be reworked to be a mathematical formula. (I wouldn't want to have to maintain the thing, but it could run.)

Re:Everything?

[Nadaka]

Probably? Reworked? All algorithms are already mathematical formulas.

Re:Everything?

[Anonymous Coward]

Indeed. Some CS theory books (eg, one by Davis) have the universal program as a ``formula''.

Re:Everything?

[lurcher]

Well, ignoring the fact that it can be proved through the normal Turing machine proof. It can be also be shown in practice that it can be reduced to a set of logic equations. Use VHDL to describe a processor and memory and any i/o required. Add the VHDL to describe the stored program containing the instructions to run on the processor to implement the algorithm. Then synthesise the resultant VHDL to a FPGA target, and you have reduced the algorithm and the machine to implement it to a set of pure matematical equations of the sort that even a lawyer could recognise as mathematics.

Re:Everything?

[Madsy]

All algorithms can be described by lambda calculus: Wikipedia:Lamda_calculus

Re:Everything?

[morgan_greywolf]

Technically, all algorithms can be expressed in terms of a mathematical formula, but they are not, in and of themselves, mathematical formulae per se. Specifically, all can be expressed in terms of lambda calculus.

Re:Everything?

[Tablizer]

I probably should have said, "in theory". There may be some cases that are too difficult or expensive to bother to convert in practice.

Re:Everything?

[Nadaka]

You can describe a mathematical formula in almost any language. It is still a mathematical formula even if not defined rigorously in a formal proof.

Re:Everything?

[morgan_greywolf]

Here's a perfectly valid algorithm stolen from Wikipedia's article on algorithms:

TEST 1: IF today's date is NOT Friday THEN done ELSE TEST 2:
        TEST 2: IF the document is NOT located at 'D:/My Documents' THEN display 'document not found' error message ELSE TEST 3:
                TEST 3: IF there is NO paper in the printer THEN display 'out of paper' error message ELSE print the document.

How does this meet the definition of a mathematical formula, as written?

Re:Everything?

[Sir_Lewk]

Here is a perfectly valid mathematical formula, paraphrased from wikipedia:

aye squared plus bee squared equals see squared

How does this not meet the definition of mathematical formula, as written?

Notation is meaningless, math is math.

Re:Everything?

[Anonymous Coward]

because you can substitute anything for those variables, i.e.

today's date = a
friday = 10
and using Dirichlet functions you can define this algebraically.

Re:Everything?

[Anonymous Coward]

clearly you never studied computer science, yet you are so confident of your correctness. cute really.

Re:Everything?

[lurcher]

And could you be so kind as to provide the "definition of a mathematical formula" which makes your statement true please?

Re:Everything?

[sjames]

Probably ANY algorithm can be reworked to be a mathematical formula. (I wouldn't want to have to maintain the thing, but it could run.)

s/Probably/Provably/.

Any algorithm can be expressed in lambda calculus. The rest is simple mechanical and interchangeable details needed to apply it.

Re:Everything?

[drdrgivemethenews]

There may be a theoretical equivalence between algorithms and mathematical formulas, but how useful is it?

I once saw Edsgar Dijkstra give a talk on proving program correctness via mathematical proof. It took him an hour--he was a great speaker so at least it was fun--to prove the correctness of a routine to compute factorials, and no one had ever heard of the theorem he finally used to nail the thing down.

During the Q&A session, Niklaus Wirth asked, "So, where did you get the rabbit you just pulled out of your hat?" Dijkstra huffed and puffed that it was no rabbit, it was a *theorem*, but Wirth serenely replied, "It looked like a rabbit to me."

Wirth's point was that requiring exhaustive knowledge in one area to perform simple tasks in another area is simply not useful. And mine is that calling everything math does nothing to tease apart and clarify the multiple issues related to software patents, and therefore is a poor way of reasoning about them.

---

Theory blazes the trail, but it can't pave the road.

Not intentional, I'm sure, but...

[srothroc]

Precedential... or Presidential? Ha!

Patented!

[Anonymous Coward]

Sorry, but I have already patented such a method, you should be expecting a letter from my lawyer shortly.

That's always been the law.

[happyjack27]

That's always been the law. Look up basic patent law. Those criteria have been fundamental since the patent system's inception. I suppose it takes a judge that's actually read the law to be able to rephrase it so that other judges can be reminded of what the law has stated for centuries. Perhaps now more patent judges will make rulings actually based on patent law. Glad to hear of the "development", but it's always been the case.

Re:That's always been the law.

[mea37]

Hmm... the judicial branch's actions involve interpreting the law rather than writing new law? What a shock.

Re:That's always been the law.

[happyjack27]

Hmm... the judicial branch's actions involve interpreting the law rather than writing new law? What a shock.

Why would that come as a shock? And furthermore, how is that relevant to what I said? Let me spell out the relationships here for you. There are two steps that come before interpreting: 1. reading 2. comprehending What I said is that it's obvious that either one or both of these steps has been overlooked by the majority of patent judges when it comes to software. What I said was that in order to interpret the law you must first KNOW what law has been written. And while I understand that there are a lot of laws and you can't expect a judge to know all of them, A. that's what lawyers are for, and B. you should at least expect a patent judge to know patent law 101. And I thought I was pretty friggin' clear the first time.

Re:That's always been the law.

[happyjack27]

nevermind. i misinterpreted you. (oh, the irony!)

Why only precedent now?

[MBCook]

For those curious, you can find the patent here. Looks like a generic recommendation engine.

My question is, if this was decided in August, why is it only precedent now?

It that normal? Was it time for an appeal?

Lawyering

[burnin1965]

Definitely a move in the right direction to address the now prophetic "untold consequences" foreseen by Judge Archer and Judge Nies in their dissenting opinion in In Re Alappat, No. 92-1381 (Fed. Cir. July 29, 1994).

Unfortunately, as with the majority decision in the 1994 Tektronix appeals case, the tests provided to determine patent-ability of software algorithms continues to leave the door wide open to incessant lawyering not for the purpose of upholding the constitution and promoting "the Progress of Science and useful Arts".

No, instead we will continue to waste investment resources to stifle competition in the name of profit margins and monopolies.

Most people likely will not read the dissenting opinion so I'll quote the conclusion from the dissenting opinion here with emphasis added so others can see the prophecy for themselves:

The majority's holding is dangerous in the following way. First, it reasons that one can obtain a patent for a discovery in mathematics as long as some structure is formally recited on the face of the claim. Under this aspect of the holding, many of the requirements for patentability other than "newness," such as nonobviousness, make no sense and cannot be meaningfully applied. Thus, mathematical patents will be easier to obtain than other patents. Moreover, the patent law will now engage in the charade wherein claims directed to a particular method of calculating numbers (for use in a computer) are unpatentable, but claims directed to a computer (performing a particular method of calculating numbers) are patentable. (Mercifully, the majority leaves open the possibility that a claim reciting structure on its face can still be rejected under 101. The majority says that this will happen where the claim reciting structure on its face is merely a "guise" for a claim to a mathematical process. Although the majority finds that Alappat's claim to a rasterizer is clearly not a "guise" for a discovery of a mathematical process, the majority does not describe in detail how one distinguishes in general a "true" apparatus claim from an apparatus claim in "guise." Presumably, the way this is done is to determine what is the invention or discovery for which the patent applicant seeks an award of patent, and then to determine whether that discovery is the kind the statute was enacted to protect, as this dissenting opinion does.)

Second, the majority accepts the argument that all digital electronic circuitry is statutory subject matter when it performs a mathematical operation, and it is all equivalent when the particular mathematical operation is the same. Under this aspect, the mathematical patents will create an enormous scope of technological exclusivity. The lack of meaningful examination and the breadth of exclusive rights conferred by patents for discoveries of bare mathematical operations are repugnant to Congress's careful statutory scheme for the promotion of the useful arts.

As the player piano playing new music is not the stuff of patent law, neither is the mathematics that is Alappat's "rasterizer." And the Supreme Court has in its decisions required it so. Alappat's claimed discovery is outside 35 U.S.C. 101, and for this reason I would affirm the board's rejection. I dissent from the majority's decision on the merits to the contrary.

Why patent and not copyright?

[AP31R0N]

Please don't mod me a troll for asking an honest question. IANaIPL. If i had the answer i wouldn't be asking.

Why allow software to be patented instead of copyrighted?

- Patents should be for THINGS (concrete stuff).
- Copyright should cover TEXT (abstract stuff).

It make sense to me that you should be able to protect the way YOU managed to execute some process, but not the idea of being able to DO the process at all. It seems to me that software companies are trying to patent vehicle direction input devices (as a concept) rather than just 'our particular design for a steering wheel'(a specific implementation).

Seems to me that these systems should exist to prevent others from stealing your specific work, the result of *your* labor; not to prevent others from engaging in the same line of business. Which seems to be the point of much of software patenting.

And why allow it to be patented instead of having it copyrighted?

Am i missing something?

Tangent/Rant:

If the intent of copyright and patenting is to encourage innovation, i think it has failed. i have tons of doodles and outlines for things i'd like to see on the market or share. But when i look at what would be involved... i'd rather do anything else. Wash dishes, scoop the litter box or watch TV... than hire a lawyer and go through the years of waiting, piles of paper work and enormous expense of dealing with the nightmare of IP. Even if i do it all and do it all correctly it could still be taken from me by a better paid lawyer.

Re:Why patent and not copyright?

[PhxBlue]

Why allow software to be patented instead of copyrighted?

Copyright doesn't fit software any better than it would a mathematical proof, since they're essentially the same thing. Software is a means to solve a problem -- I daresay if someone comes up with a unique way of solving a particular problem, they should be granted a patent. But that doesn't mean that someone should be given a patent on every way of solving a particular problem.

Re:Why patent and not copyright?

[Grond]

It turns out that there are lots of responses to your criticisms and questions. I will go over a few of the main ones.

First, patents are for 'concrete stuff.' The patent statute makes this quite clear. "The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 USC 112 (emphasis added). Furthermore, "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains...to make and use the same." Id (emphasis added).

Now, a common rejoinder here is that many patents have very broadly written claims and weak specifications. This has not gone unnoticed, and there is a trend in Federal Circuit decisions to tighten down the requirement that the claims indeed be fully supported by the specification, which will tend to result in narrower claims and more detailed specifications. Furthermore, many broad claims that get through prosecution end up being invalidated on reexamination or during litigation; broad claims are easier to invalidate than narrower claims. Personally I support eliminating the strong presumption of validity for patents, which would make all patents easier to invalidate.

Second, copyright is not for 'abstract stuff.' Quite the opposite, in fact: copyright protects the concrete expression of an abstract idea. In software this has been interpreted quite narrowly; as long as the source code, object code, and UI elements have not been copied or derived from, one is generally free to duplicate what a program does. This is because copyright explicitly does not cover the functional aspects of a work, only the creative, non-functional aspects. "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 USC 102(b).

Thus, if only copyright were available for software and not patents, there would be at least two major gaps in protection. First, functional aspects of a program could not be protected. All technical innovations would be up for grabs. Second, copyright does not protect against independent implementation, so even the creative aspects would not be protected against clean-room reverse-engineering.

This is all without really getting into the fact that copyright is free and automatic whereas patents are expensive and must be applied for, that a copyright in one country is generally a copyright worldwide whereas patents are territorially limited, that patents have a limited duration whereas copyright is practically forever, or that patents can be invalidated due to obviousness whereas there is no clear equivalent to that doctrine in copyright. All of these and more are reasons why copyright in software cannot simply substitute for patents.

Now one can argue that the patent system has its faults as implemented (and I would agree) or that it doesn't encourage innovation (and I would generally disagree) or even that all software should be open source by statute (and I would certainly disagree), but on at least a theoretical level the different kinds of intellectual property serve different, complementary purposes.

Re:Why patent and not copyright?

[AP31R0N]

Thanks! That clears up quite a bit. i can't mod you here so i'll see if i can mod you elsewhere.

Re:Why patent and not copyright?

[reebmmm]

IAaIPL with a pretty big lawfirm, so I'll take a crack at this:

Why allow software to be patented instead of copyrighted?

There is no "instead." Currently you can obtain both: one for "original work of authorship fixed in a tangible medium of expression" (i.e., copyright), and one for the "new, useful, non-obvious" "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (i.e., patent).

Patents should be for THINGS (concrete stuff).

Well, I'm sure that one make the concrete industry happy, but I don't think it is a logical policy distinction.

Snark aside, there are a few easily articulated reasons. First, it really depends on what you mean by "concrete stuff" and "things." There are lots of "things" that aren't concrete (we usually say "tangible"). But interpreting what you mean by "concrete" from your subsequent bullet, I'll tell you that your conception of the dichotomy between patents and copyrights is almost 100% inverted. Patents are essentially stakes in the ground around an idea whereas copyright is the protection of the actual expression of an idea. As it relates to software, it's the difference between the idea for the code and the code itself.

Second, the statutory classes include non-concrete things such as processes. This is the "because the law says so" argument.

Third, it's not just tangible things because it's very difficult to draw the line between "concrete stuff" and the not-so-concrete stuff. If you look at the claims at issue in this case, they're not just the algorithm. It's a computer programmed to do the algorithm.

Think about it like this: a lever and a fulcrum are essentially the mechanical expression of using a physics equation for leverage. If you were the first person to think of how to apply the leverage equation to lift things, that would be quite an advance--I have assumed away the obviousness issues since the inventor is the first person to ever think of it and focused only on whether it would be patentable at all.

Copyright should cover TEXT (abstract stuff).

It's not the "abstract stuff" that is covered at all. It is the actual expression of the abstract stuff that is covered. You do not get a copyright for your incorrect ideas about intellectual property, only the expression of it.

Seems to me that these systems should exist to prevent others from stealing your specific work, the result of *your* labor; not to prevent others from engaging in the same line of business. Which seems to be the point of much of software patenting.

If you've ever been involved in a copyright dispute, you'd recognize how little protection that actually offers you. Furthermore, if you've ever been involved in a major software development project, the amount of time actually writing a specific piece of code is diminishingly small compared to the other time, effort and energy expended to get to that point: design, plan, etc.

Viewed in this lens, protecting only the expression is not a lot of protection since it's easy to copy the idea without copying the code.

i have tons of doodles and outlines for things i'd like to see on the market or share.

Your individual experience says little about whether patenting and copyrighting advances or encourages innovation. Patents and copyrights offer some additional incentives. Those incentives are not enough for you, clearly. You are not along, there is a whole world of trade secrets for innovations that would be under-rewarded via patents and copyrights.

But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.

Re:Why patent and not copyright?

[mea37]

Attempting to define a patent in overly-broad terms is not unique to software. The PTO just doesn't seem to be very good at defining it in the context of software yet.

I think copyright protection for software is a poor fit. Copyright is a good fit for creative/expressive content (or at least, it would be if it weren't so messed up in its current legal form); but program code is functional in nature, and I don't think copyright works very well for that.

The application of copyright to software is IMO a pragmatic decision to make it possible to "sell" or "license" software to end users for profit. I think the principle is a stretch.

Copyright also has drawbacks in terms of how much protection it really offers. Once I know how your software works, I can write source code that works exactly the same way and copyright would not protect you. You talk about not getting protection if I can execute a process in a different way, but copyright wouldn't apply even if I execute it the same way you did, so long as I wrote my own code to do it.

That alone doens't speak to whether patents for software are appropriate, but it is why there is interest in the subject. The question I think remains poorly-addressed, even with this decision, is: in a world where algorithms are increasingly applied by configuring a general-purpose processor rather than by building some special device, how do you properly distinguish the algorithm (clearly shouldn't be patentable) from the innovative application thereof?

Re:Why patent and not copyright?

[Anonymous Coward]

IANAL, but I'll try...

IMHO, patenting software is NOT the problem; ABUSING the system of software patents is the problem - a problem further exacerbated by an inept USPTO office that can't determine valid patents from troll submissions, and an uneducated judiciary incapable of competently litigating patent cases.

Personally, I think software patents should be granted. In the past, many people here have used the auto industry example of "you can't patent a car to stifle competition and make people buy your clunker". That argument is valid, and focused on the RESULT of a process (i.e. a "car"). But it is entirely valid - and proper - to patent an innovative new way of CREATING a car (or parts of a car).

Does that apply to software? Assume you produce financial reports for investors. You can use copyright law to to prevent theft of your product via plagerism (i.e. keep others from stealing and reselling the final product of your hard work). But what about how you CREATE your report? What if your reports are the best on the market because you have a unique method of acquiring, analyzing, and collating data into a useful form - and you do it better than everyone else? Should your method of producing the report be protected as well?

This is where the "like a car" analogy breaks down. Someone steal the designs for a robotic assembly line to build Chevy Malibu's, but could they actually DO it? I.T. systems are fundamentally different because the value is in the information, NOT the infrastructure used to manage and process the information. The technology elements of an IT system are relatively easy (and cheap) to reproduce, as long as you know what your trying to accomplish.

So, if you have a unique method of producing financial reports that is fundamentally different from everyone else, and the result of your process is a product that is SUBSTANTIALLY better than your competitors, why should someone else be able to use the process you spent time and money to build to replicate your reports (and drive you out of business)?

However, with that said, I also also acknowledge that the potential for abuse is huge, especially with the inept and incompetent governmental agencies we currently have that are supposed to manage the patent process. Should someone be able to patent a process that already exists (even if nobody has patented it up to this point)? No. Should someone be able to patent a fundamentally basic concept or action that is a part of the natural technology environment (such as double-clicking an icon to open it)? No. Should someone be able to patent a vague, incomprehensible process that has no tangible result or process? No.

But should I, as a software developer, be able to protect a new computing algorithm that I produced ON MY OWN, especially if I have spent years of my life and thousands of dollars of my own money to develop it - and the new algorithm can produce (or participate in the production) of product that can make me money? If I can't protect the product of my own work, then what is the incentive for me to do anything innovative at all? I should either resign myself to being a cube drone for the rest of my life, or starve as a FOSS developer hoping that I produce the next silver bullet that people will pay me for (even if they don't have to).

I want to be innovative. But if I produce something truly innovative that actually WARRANTS a patent, then others shouldn't have the right to profit from my work without compensating me; and the fact that it's software instead of a car assembly line doesn't change that fact.

Do you think that the so-called "secret formula" of Classic Coca-Cola is really "secret"? Or is the formula simply protected by patents and other legal mechanisms so somebody can't use that exact formula to produce something that LOOKS like Coke, TASTES like Coke, makes you burp and fart like Coke, but it isn't Coke? Oh, and it's 25 cents a can LESS than Coke?

I don't think so. But then again, the Coca Cola company

Re:Why patent and not copyright?

[Yvanhoe]

[quote]Am i missing something?[/quote] You are proposing to put rules that make sense in the patent process. There is a rule against that.

Re:Why patent and not copyright?

[pipedwho]

But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.

I think the OPs argument is that Copyright is sufficient and that Patents have gone way too far (primarily in the software world - but IMO they have gone too far in all areas).

The thing that holds many people back is the fear of litigation. For example, if I patent something and the patent goes through, then I am giving a potential litigator an insight into how my product works. Chances are there are a whole bunch of other patents that may be construed as being infringed upon. So even if my team of 10 guys did nothing but read patents all day and discuss the subtleties of claims that I might be infringing, chances are we would either never release a product, although we would surely be prepared to go to court with a prepared defence. Subsequently, if for some reason our defence doesn't pan out, we may end up being smacked with triple damages for intentional infringement. And even if it does pan out, well we're still out all our legal and investigative fees.

This is why the patent system is broken. If patents were forced to only include extremely specific claims, then this wouldn't be a problem. Unfortunately, in the real world, patents are all written to maximise vagueness and broadness of application.

I see too many patents in my field where the patent is clearly an obvious derivation of an existing concept. These are hard and expensive to invalidate as one man's 'obvious' is another man's 'genius'.

Re:Why patent and not copyright?

[ZombieBraintrust]

Yes but you must realize that no one reads software patents. The average software developer writes thousands of lines of code a year. They aren't checking to see if their code infringes a patent. There is no cheep quick process to check if your code infringes a patent.

I'll give it a go - sure someone will do better!

[Yay Another Nickname]

Is the claim limited so as to not encompass substantially all practical applications of the mathematical algorithm5 either “in all fields” of use of the algorithm or even in “only one field?”6

if (claim) !(( practical algorithm application) (( fields) || (fields x 1))) then no patent

Neither are easy to read - but I think the idea is you cant patent a mathematical formula by itself

Double-Edged Sword of "Equivalency"

[Tablizer]

Unfortunately, if this logic actually held, then software would never have been patentable. An algorithm, if you explain it in a certain way, can sound a whole lot like a machine.

As RMS once pointed out, machines are more and more being implemented in software instead of hardware these days. Where gears and spring-triggers may have been used before, now sensors, cameras, and servos are used more and more often instead. Thus, ending software patents may end up ending patents all-together.

Some may feel that's a good thing. But, many feel that research should be rewarded beyond just being first-to-market. The problem is separating "good ideas" from patent trolling. How can the legal system distinguish? I doubt there are any set of clear rules for such. The best we can have may be some form of "techie jury" that ranks the innovation level.

The mechanical world was in general easier to manage with patents because equivalency was difficult to obtain without adding extra parts or movement. However, software is much more malleable such that there are many different ways to achieve something sufficiently similar without critical loss of efficiency. But this also encourages the use of overly-broad patents that can be interpreted to cover just about anything roughly similar. Equivalency allows the patent defender to interpret the alleged violator's process as being the same as the patent.

When everything is everything, nothing is nothing, and the most cleverest-at-tongue lawyer wins in the end. This is why big companies tend to favor wide patents: they have the best lawyers.

Re:Double-Edged Sword of "Equivalency"

[nine-times]

But this also encourages the use of overly-broad patents that can be interpreted to cover just about anything roughly similar.

It seems to me that this is part of the big problem with some of the patents that I've read about (though I may be misinterpreting things). The patents seem to be for things like including full motion video in video games, for 1-click shopping, or for making plugins automatically load in browsers. That is, they're very close to being a patent about the outcome, i.e. the effect of the "machine" and not how the "machine" works.

It would almost be as if I patented "a machine that washes clothes", and then suddenly other people can't use machines that wash clothes of any design without paying me. I gather the patent system was supposed to be about particular novel designs, and not about the effects of those designs. It was about patenting a particular washing-machine design, and not about patenting the washing machine.

But it seems like the problem with some software patents is that, even when they describe how a process works (and I've read a couple patents) it's kind of overly broad. The comparable process for the washing machine would be something like, "The user loads clothing into the machine, waits for some period of time, and then when the machine has finished running its course, a buzzer sounds. The user can then remove the clothes, which will be clean but wet." It's still not talking about the nuts and bolts of the machine construction. Now I guess if you get down to the nuts and bolts of most software design, you're just talking about source code, which is covered by copyright already. It's not clear to me that patents should apply to most of these things.

But maybe I'm wrong. I'm certainly not a patent law expert.

Re:Double-Edged Sword of "Equivalency"

[jbengt]

. . . machines are more and more being implemented in software instead of hardware these days. Where gears and spring-triggers may have been used before, now sensors, cameras, and servos are used more and more often instead.

Sensor, cameras, and servos are not software.

Re:Double-Edged Sword of "Equivalency"

[Sir_Lewk]

The point is that the actual mechanisms that define a device are moving to software. Sensors, cameras, and servos are the hands through which the software interacts with the world. They do not represent the essence of the device.

I love Slashdot

[Anonymous Coward]

I'd like to point out that this opinion gives clear guidance on how to secure software patents. While the patent at issue failed to meet the requirements, the door it closed is extremely narrow and, honestly, a quite reasonable approach. Basically, you can't write a claim that forecloses every possible use of an algorithm. But if you apply that algorithm to a specific task, a requirement which apparently must be met even in a Beauregard claim, then you're fine.

Sorry chaps, you'll soon figure out that there's really nothing that special about software in the grand scheme of things.

So, for all those of you cheering the eminent demise of software patents, you should probably take a step back and realize that this opinion strengthened them. And Bilski *will* follow suit.

Patent BS

[TiggertheMad]

Writing code is creating a 'thing', and falls under patent law.
Copying that program and selling it falls under copyright law.

of course, software falling under patent law is pure bullshit, not only for all the reasons that dozens of posts on this thread will mention, but also because nobody is actually disclosing usable source code in their patents. A patent is supposed to explain an exact method for doing something, not just vague hand waving and hints about how something is done.

I would have far less of a problem with software patents if they actually disclosed fully functional source code with the patent. The way things work now, they get the benefits of a patent, and the secrecy of having a trade secret.

Re:Patent BS

[reebmmm]

I would have far less of a problem with software patents if they actually disclosed fully functional source code with the patent

Some patents do include source code. But the law has pretty much made this non-essential. This has happened for the same reason that most electronic patents no longer include the diagrams with elaborate gating, switches, etc. Courts and the PTO have more or less made the enablement requirement assume that one of ordinary skill (including reasonably skilled programmers) could put together the source code if given the high level steps. You don't need the source code if you know the steps.

In addition, source code has a serious flaw: not all source code is created the same. It would be of little help if the source code is obfuscated, in a language few remember of know (my favorite that comes up from time to time in MHR is MIIS), or if certain functions relevant to the invention are taken out of context of the rest of the system. Filing 1000+ pages of source code is not going to make the system better. It will probably make it worse.

Rather a limited decision

[russotto]

This patent used the common tricks of "An ordinary computer implementing 'insert unpatentable material here'" and "A computer-readable medium containing code implementing 'insert unpatentable material here'", and while the board rejected both, it did so with very nitpicky analysis (particularly in the second case).

What the board should have done is categorically rejected them, particularly the second one. A claim like "A computer-readable medium containing X" should be no more valid than a claim of "A human-readable medium containing X". And the latter case would make the patent applications themselves patentable, which is obviously absurd.

Contradictory?

[hackingbear]

In my observation of software patents, those that are really mathematical in nature like a new compressing algorithm, 3-D rendering algorithm, etc are actually the ones that are most genuine, non-obvious, creative. Come on, if those are trivial, can you come up with one that beats the existing ones now? On the other hand, the low quality / troll patents, like those involving UI or famous EOLA browser plugin patent, are usually non-mathematical in the the usual sense. You could argue it is still math, but even a mathematician would not look at it that way. Are we doing it the opposite way?

Re:Contradictory?

[Nadaka]

More or less, I agree with this. But then, I generally think that 95% (insert some random percent close to 100) of patents are worthless crap that should not be patentable anyway.

Re:Contradictory?

[hackingbear]

So perhaps we can just mandate mathematical (that includes algorithmic) genuity and solve it all?

Re:Contradictory?

[Anonymous Coward]

I have to agree. We are doing it the opposite way of how it should be done. The things that deserve protection are the mathematical algorithms. As you rightly pointed out, compression, rendering, etc give real opportunities for major novelty and advancement. My favorite example is the RSA algorithm. A simple math theorem that has huge value, but once it's in use, it is easy to copy. The people who invented should be able to protect it. Why does RSA not deserve a patent?

The rabbit hole goes deeper than you know...

[Anonymous Coward]

You don't seem to understand the Curry-Howard correspondence. Software is math in a fundamental way that does not apply to physics, chemistry, etc. Software sets up a calculation. It *is* math, it doesn't just use math. It doesn't merely describe software, it implements it. Unless you're going to claim that all of reality is running on a computer somewhere, or that Earth itself is a giant calculator for mice...

A computer is nothing more than an automatic mathematician. If we call the work of mathematicians like me "math" why is that different from what we call the same work done by a machine ("software")? Check out the work of these guys sometime and tell me exactly where the imaginary line goes. Or please give us an example of a "non-mathematical" program. We'll be happy to point out that it is, in fact, a big number and show you the connection to Godel.

If your goal is to permit software patents, you would do better to remove the blanket exemption of "math" (or else, limit it to mathematics not done by machine), rather than trying to pretend that math done by machines is no longer math.

Re:The rabbit hole goes deeper than you know...

[Halo1]

You don't seem to understand the Curry-Howard correspondence.

You don't seem to understand that I was only pointing that forbidding patents on math does not automatically remove all science fields mentioned in the XKCD comic from patentability, in order to defang the argument that opposing software patents because they are math patents is equivalent to opposing patents on anything, because all sciences are supposedly math.

I did not say or even intend to imply that software isn't math. Just google for my name (from my email address) in combination with "software patents" and you'll see that I would be one of the last people in the world to advocate software patentability.

Well, that or you intended to reply to the GP instead of to me.

Translations anyone?

[meerling]

Ok, I feel really stupid reading that thing.
It's in a form of legalese which is something that always makes my mind retreat to the dark recesses of my brain to hide in fear.

Can someone please provide a normal-speak (or even geek-speak) version of that mess, maybe with an example or two?

I'd certainly appreciate that, and I'm sure a lot of other readers would as well.

Re:Translations anyone?

[Dachannien]

Essentially, the Supreme Court and the court under it (the Court of Appeals for the Federal Circuit, aka "CAFC" or "Federal Circuit", and its predecessor, the Court of Customs and Patent Appeals, or "CCPA") have over the years reached the legal decision that there are exceptions to the law which says what things are patentable.

That particular law, 35 USC 101, says that new and useful processes, machines, articles of manufacture, and compositions of matter are patentable. So, a trash compactor, being a machine, is patentable. A song, which isn't within any of those four classes, is not. That's sometimes called "not falling within a statutory class" or simply "nonstatutory".

However, the courts have said that there are certain claims that may appear at a glance to be statutory (because they say "a method" or "a system" at the beginning, implying that a process or machine is being claimed), but are actually not statutory. Laws of nature, natural phenomena, and abstract ideas are called "judicial exceptions" because the statute itself doesn't explicitly say that these things are nonstatutory, but the courts have held that they are nonstatutory anyway. So, F = ma is nonstatutory because it's a law of nature; adding two numbers is nonstatutory because it's an abstract idea. But some way of using F = ma or addition might be statutory... depending. (On what? Well, that's the question, ain't it?)

In the current case, Ex parte Gutta, the BPAI (the appeals board, internal to the USPTO, that represents your first line of appeal after the examiner rejects your application) agreed with the examiner's rejection. They said that the method claimed by Gutta was nothing more than a mathematical technique. Essentially, it was (1) calculate the variances of a set of values around each value in the set, and (2) choose the value with the lowest variance as a new "mean" value. There was no mention in the claim of limiting it to a specific application of that technique. So, the claim runs afoul of the judicial exceptions (it's an abstract idea). Essentially, every possible use of the mathematical technique is covered by the claim, and the courts have said that that's not permitted. This is connected to the "machine or transformation" test you may have read about in other /. discussions of Bilski v. Kappos, in that the "machine or transformation" test is supposed to tell you whether the claim is directed to a judicial exception or not.

But the board went beyond Bilski in this case, saying that the same principles apply to system claims or computer-readable medium claims. Essentially, saying that you have a "system with a processor and a memory, wherein the processor is configured to perform the steps of..." is just window dressing when the "steps of..." are something that would be nonstatutory on their own in a method claim. This is important, because in the vast majority of computer-related applications, the applicant will present three sets of claims: one claiming a method, one claiming a system which performs the method, and one claiming a computer-readable medium (CRM) in which is embodied a program which performs the method when executed by a computer. Without Ex parte Gutta, the policy of the USPTO has been to reject the method claim under 35 USC 101 if it fails the machine or transformation test, but not reject the system and CRM claims, because the processor and/or the CRM makes it statutory. Depending on the result of Bilski v. Kappos (expected in a couple of months from the Supreme Court), Gutta may become a useful tool to prevent window dressing from making an otherwise unpatentable method patentable as a computer programmed to do that method.

One caveat, however, is that Gutta was particularly egregious in terms of the abstractness of the claimed method. A lot of claims in other applications involve manipulations of data. For example, taking an x-ray image of a person, adjusting the contrast or other aspects of the x-ray image, and displaying the mo

Re:Translations anyone?

[mduffy-austin]

Thx for the clear explanation.

Ipwatchdog's coverage of the oral arguments in the Bilski case (presented November 9, 2009) also provides great insight into these issues.

http://www.ipwatchdog.com/2009/11/09/bilski-arguments-complete-at-the-us-supreme-court/id=7217/#comment-10030

Based on reading this coverage, it seems unlikely that the U. S. Supreme Court will overturn all software patents.

There are a lot of wackos out there who believe all software patents should be invalidated because they are merely ideas. One of the commentors at Ipwatchdog gives a great refutation of this assertion:

"...you clearly do not understand computers and software if you believe they are abstract ideas. . The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into a application specific electronic circuit. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits."

I thought this was more appropriate

[Anonymous Coward]

http://xkcd.com/505/

I don't buy that argument.

[pavon]

The natural world may only be approximated using a mathematical framework (at least at present), but the devices that we create based on that knowledge is a direct application of the mathematical models. And it is those devices that are under question when one applies for a patent, not science or nature as a whole.

So say you have an algorithm, and claim that it is nothing more than math. You can implement that algorithm in a programming language, convert it to machine language for a general purpose processor, implement it as a giant logic table in an FPGA, implement it using TTL logic circuits, or make a custom ASIC of the same logic. Many algorithms, such as signal processing, can be implemented to within a desired precision with either digital or analog filters. There are also mechanical implementations of the same ideas - mechanical calculators are obvious, but even simple things like automatic valves may be more robust in for certain applications than converting to the electronic/digital realm and back again. At what point do you draw the line and say that it is no longer just a mathematical algorithm?

Re:I don't buy that argument.

[Halo1]

The natural world may only be approximated using a mathematical framework (at least at present), but the devices that we create based on that knowledge is a direct application of the mathematical models.

No, they are a direct application of the laws of physics (and its manifestation in chemistry, biology, ...). These laws and their applications are described by mathematical models because those are a lot more efficient to work with (and to automate) than equivalent natural language descriptions, but the underlying novel insights are based on experimentation in the real world, not regarding maths (maths are just used to describe/generalise the observations from said experiments).

So say you have an algorithm, and claim that it is nothing more than math. You can implement that algorithm in a programming language, convert it to machine language for a general purpose processor, implement it as a giant logic table in an FPGA, implement it using TTL logic circuits, or make a custom ASIC of the same logic. Many algorithms, such as signal processing, can be implemented to within a desired precision with either digital or analog filters. There are also mechanical implementations of the same ideas - mechanical calculators are obvious, but even simple things like automatic valves may be more robust in for certain applications than converting to the electronic/digital realm and back again. At what point do you draw the line and say that it is no longer just a mathematical algorithm?

There are definitely grey areas and there is no way to draw a 100% clear line (even if you don't consider the issue of software patents at all; it's simply the nature of civil law), but as far as I am concerned the cases that you mention are not necessarily hard to classify.

Whether you implement an algorithm in software or in an ASIC or in an analog filter should be irrelevant. If your contribution only lies in the algorithm, then this is what should be considered for testing the patentability requirements. If you also contribute a completely novel way of building an ASIC or an analog filter, then you'd be crazy to only claim that novel hardware in combination with a particular algorithm rather than the hardware on its own (since the latter would cover any usage).

Conversely, if you figure out that you need 2 parts of Pb and 3 parts of Na to make 2 parts of Au, the fact that you can express this using a mathematical formula does not render this knowledge unpatentable (just like describing it in English does not render it unpatentable, even though text cannot be patented -- what you are patenting is not the description, but what is described). And performing this chemical reaction under control of a computer program would not render this process non-infringing simply because the basic knowledge is described in the form of a computer program and applied under computer-control.

There are other examples, such as the psycho-acoustic model used by MP3 compression. While MP3 compression is usually implemented completely in software and a psycho-acoustic model is a mathematical model, this model is based on new knowledge about the physical world and hence a patent on that would not necessarily be a math patent (of course, there are other problems that pop up in this case, such as interoperability/network effects).

Another example is anti-lock braking: it's virtually always performed under software control, but the actual invention is that by measuring the heat caused by the friction between the wheel and the brake you can determine whether you are skidding or not (and again, whether you perform this process via software, hardware or anything else is irrelevant as to whether or not it infringes, as long as the patent claims are drafted properly).

Business Process Patent Collateral Damage

[bill_mcgonigle]

Any algorithm can be expressed in lambda calculus. The rest is simple mechanical and interchangeable details needed to apply it.

It would be worth it to take down business process patents as well, for they are merely algorithms.

I'm pretty sure most machines could also be so represented, though.

Simplest Solution...

[alfielee]

Here's one for Microsoft & IBM. If you don't actually build the idea, the design, the original design idea, then it doesn't even exist. Just because the idea exists doesn't make it yours or real. If you haven't made it, you can't patent it.