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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."
Well since all software is math, this would effectively ban all software patents.
"linux is just DOS with a UNIX like syntax" -- Galactic Dominator (944134)
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.
'We are trying to prove ourselves wrong as quickly as possible, because only in that way can we find progress.' RPF
Probably? Reworked? All algorithms are already mathematical formulas.
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.
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?
Comment forecast: Bits of genius surrounded by a sea of mediocrity.
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.
It is a miracle that curiosity survives formal education. - Einstein
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.
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 :-).
It is a miracle that curiosity survives formal education. - Einstein
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:
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.
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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.
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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.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
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.
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?
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).
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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