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(Highly Divided) Federal Circuit Opinion Finds Many Software Patents Ineligible

Posted by Soulskill on from the system-and-method-for-bits-and-stuff dept.

ais523 writes "The Federal Circuit has divided CLS Bank vs. Alice Corp., a case about various sorts of patents, including software patents. Although the judges disagreed, to a lesser or greater extent, on the individual parts of the ruling, more than half decided that the patents in question — algorithms for hedging risk — were ineligible patent matter, and that merely adding an 'on a computer'-like clause to an abstract algorithm does not make it patentable. Further coverage is available at Groklaw, or you can read the opinion itself (PDF)."

23 of 116 comments (clear)

  1. about by NEDHead · · Score: 4, Insightful

    time

    1. Re:about by Jane+Q.+Public · · Score: 4, Informative

      "about time"

      Yes, about time this was RE-affirmed. Because some people seem to have forgotten their history.

      This all took place -- same subject, and in exactly the same way -- about 100 years ago. Musicians were concerned with other people "stealing" their music by copying player piano rolls using stock paper, some glue, and paper punches. (Sound familiar? Gill Gates started this whole software "protectionist" era by suing people for copying his Altair BASIC interpreter that was stored on paper tape.)

      John Philip Sousa, in fact was on the plaintiff end of some of these suits. And the courts decided that the form of the work doesn't matter. It can be on paper rolls, or in a book of sheet music, or whatever. AND, the courts also ruled that it doesn't matter whether it is in a form that controls machines, either. A written work is still nothing more than a written work!

      And so with software. Software is properly governed by copyright, not patents. Where the software represents novel business practices or formulae, those business practices and formulae may be patentable. But according to ages-old court precedent, software itself never should have been.

  2. Does that mean? by Anonymous Coward · · Score: 3, Interesting

    ianal, so all rampant speculation here...

    But, if that basically means that using a certain algorithm is not patentable, and doing the required calculations on a computer is not a bright enough idea to make it patentable, then where is the line that makes something patentable? There are so many patented algorithms, this could have gigantic financial implications for many large companies. Or will this be like most such court decisions, that the legal matters are so complicated that this particular decision won't really matter.

    1. Re:Does that mean? by Runaway1956 · · Score: 5, Interesting

      There is no line. Algorithms were never meant to be patented. If you're using an algorithm, and you don't want other people to know what you're using, then it's a TRADE SECRET. Funny thing though, is that anyone can decompile your software, and uncover your trade secret. So, what happened is, everyone tried to get their not-so-secret secrets to be covered by a patent.

      It's a corruption of the system. Nothing more, nothing less.

      --
      "Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
    2. Re:Does that mean? by Karl+Cocknozzle · · Score: 3, Interesting

      Yes, but the next question is whether or not there should be some protection of trade secrets. Given a state actor aggressively hacking most major companies, and a distributed threat against smaller companies, there is a case to be made for some protection.

      I'm not sure what "protection" that would provide: China already is breaking the existing laws of the United States, what makes you think a regimen of laws to protect "trade secrets" will stop them? What it will be useful for, though, is hushing up whistle blowers.

      --
      Who did what now?
    3. Re:Does that mean? by Theaetetus · · Score: 5, Informative

      There is no line. Algorithms were never meant to be patented.

      35 USC 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

      Algorithm: A process or set of rules to be followed in calculations or other problem-solving operations, esp. by a computer.

      I'd say it's pretty clear that algorithms were meant to be patented, provided they were new and useful and met the other conditions of the patent act.

    4. Re:Does that mean? by gwolf · · Score: 4, Interesting

      Right — And nowadays, if you *really* want to protect your secret, you don't even have to ship it to your customer: Just offer it as a Web service. No way to decompile that (although it can, of course, be reverse-engineered).
      Given an enough-connected world, trade secret is again tenable for algorithms. Not everything can work depending on a Web service, but it pushes quite far the need.

    5. Re:Does that mean? by K.+S.+Kyosuke · · Score: 5, Interesting

      35 USC 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

      Hm. Hmmm. There's this talk about "machine", "manufacture", and "matter" that makes me think whether "process" meant actually meant "technological process" (including, say, the chemical ones). When exactly was this law written? Before or after Turing? :-) Given the fact that algorithms are essentially very complex equations, one would expect that mathematics would have been mentioned if that were the case.

      --
      Ezekiel 23:20
    6. Re:Does that mean? by Karl+Cocknozzle · · Score: 3, Interesting

      China already is breaking the existing laws of the United States

      How, by having Chinese people go visit US and commit crimes over there?

      By invading systems in the United States they are, in fact, violating US law. It doesn't matter where you are, when you commit a crime against someone (or a property crime against some thing) in the United States you are breaking United States laws. Now, they're doing so in a way that seems unlikely to lead to prosecution or conviction, but the laws have been broken. You can't come to the US, whether in physical or virtual form, and act with impunity. Laws do in fact apply to Chinese nationals, and if any of them showed up on US soil they could be arrested, tried, and jailed for their crime: Acting under state orders is not an affirmative defense that I've found.

      --
      Who did what now?
    7. Re:Does that mean? by K.+S.+Kyosuke · · Score: 4, Interesting

      Algorithms are not "complex equations" any more than a machine is.

      Oh, but Alonzo Church says they are! And I'd prefer Alonzo Church's words to your words any day.

      Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

      I think there are both practical differences (investment levels, for starters: it's quite expensive to experiment with chemical processes, drug manufacture, upscale them, AND comply with medical and industrial regulations, whereas algorithm design is hardly more expensive than any other kind of academic or applied mathematical work) and theoretical differences (example by contradiction: if algorithms indeed *are* patent-worthy, why not the rest of mathematics? And if the rest of mathematics is patent-worthy, why hasn't any country done that yet? Case in point: in my country, anything derivable from math is explicitly ruled out as unpatentable).

      --
      Ezekiel 23:20
    8. Re:Does that mean? by K.+S.+Kyosuke · · Score: 4, Funny

      By invading systems in the United States they are, in fact, violating US law.

      Unlike the US, which by invading systems in Iran doesn't violate any law at all! :-)))

      --
      Ezekiel 23:20
    9. Re:Does that mean? by the+eric+conspiracy · · Score: 3, Informative

      Decisions have determined the limits of the statutory classes. Examples of subject matter not patentable under the statute follow:

      A. Printed Matter
      For example, a mere arrangement of printed matter, though seemingly a "manufacture," is rejected as not being within the statutory classes. See In re Miller, 418 F.2d 1392, 164 USPQ 46 (CCPA 1969); Ex parte Gwinn, 112 USPQ 439 (Bd. App. 1955); and In re Jones, 373 F.2d 1007, 153 USPQ 77 (CCPA 1967).

      B. Naturally Occurring Article
      Similarly, a thing occurring in nature, which is substantially unaltered, is not a "manufacture." A shrimp with the head and digestive tract removed is an example. Ex parte Grayson, 51 USPQ 413 (Bd. App. 1941).

      C. Scientific Principle
      A scientific principle, divorced from any tangible structure, can be rejected as not within the statutory classes. O"Reilly v. Morse, 56 U.S. (15 How.) 62 (1854).

      Section C disallows abstract mathematics from being the subject of patents.

    10. Re: Does that mean? by ustolemyname · · Score: 4, Informative

      No, the US knows full well they are violating Iranian law. They, like most, just don't care about Iranian law.

  3. A small first step. by wulfmans · · Score: 3, Interesting

    Now how about fixing the rest of the patent system?

  4. Bilski by Etherwalk · · Score: 4, Interesting

    It is worth noting that despite the difficulty garnering a majority, this was a case with particularly good reasons to expect patent invalidation. First, it is conceptually similar to the hedging risk patent struck down in Bilski--i.e. in broad brushstrokes, the closest thing to it that the Federal Circuit would have thought about first was struck down. Second, and the real crux of it, is that the computer just wasn't that important. Third, although not addressed by the concurring opinion, it was about as obvious as one can imagine.

  5. borked pdf link, or just for me? by girlinatrainingbra · · Score: 4, Insightful
    The pdf link gets me to an error message page: Error

    Error

    This page can't be displayed. Contact support for additional information. The incident ID is: 0.

    on the court's web page. Is it just for me, or a bad link?

    According to Groklaw, however, one of the judges said

    ``Let's be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents,'' Moore wrote.

    Let's hope that Judge Moore is right, and these patents and deemed ineligible for patenting at all.

    1. Re:borked pdf link, or just for me? by JakeBurn · · Score: 5, Insightful

      And I completely agree. Software should be treated like a recipes. People who put the time in to figure out how something is cooked can easily make a generic version. People still pay for the good versions of things because everything else that goes into the product is better.

  6. Good! by Murdoch5 · · Score: 3, Funny

    Patents are the worlds most ridiculous form of protection ever invented. If your a company and you make a great product that it doesn't matter if someone comes to the market with the same product, if your product is better it will win out. Patents are "But Mom", of the business and technology world. Right now some companies are more focused on getting the patents to market then the product they protect. Patents destroy open development and open collaboration and take everything to a closed tangled web of lawyers and judges instead of the open work bench of weekend builders.

    1. Re:Good! by leonardluen · · Score: 5, Insightful

      at least patents, unlike copyright, still have reasonable expiration dates.

    2. Re:Good! by Monty845 · · Score: 3, Interesting

      Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition. Our drugs are functionally identical, there is no way I can offer a superior version because when it comes right down to it, the composition is what valuable, and its easily replicated. How will I make my $1B back when you can offer the drug at a price that never needs to pay back the research investment. Don't get me wrong, the patent system is seriously messed up, but there is a need for patents in some cases.

    3. Re: Good! by msparker · · Score: 4, Interesting

      This is, of course, one of the main arguments for protection against copying, but on the other hand, the fashion industry does not have this kind of protection and there is a lot of innovation there. It is argued that this innovation is in large part a result of the lack of copy protection. The high end must have something new to sell after they are copied. Also, this copying frequently involves some degree of change itself.

  7. Not really about software patents by meustrus · · Score: 5, Interesting

    It looks to me like the judges are finally deciding not against software patents in general, but patents of the type "doing X, but on a computer" or "doing X, but on a smartphone". The judgement is basically that you cannot patent something that's already patented, or is a natural law, or is an abstract concept not specific to any particular application, just because you describe it in an unusual way or put it in a new context, i.e. "turning a page, but on a touchscreen instead of an actual page" or in this particular case, "hedging risk, but by a computer algorithm instead of by bankers". Also not allowed would be "the browning of grain-based spongy material through local application of heat", also known as "making toast".

    --
    I sometimes ask revealing, often ignorant-seeming questions. Maybe they're harder to answer than you think.
  8. Pretty Vital Issue! by MarkvW · · Score: 4, Insightful

    Robotic manufacture is going to go crazy in the next decade and it's going to change everything.

    Software is needed to make that shit work. If software patents can make (profitable) roadblocks to 3d implementation, then robotic manufacture is going to go someplace besides the USA.

    This is so obvious that even the Supreme Court is going to see it. (Congress might need some 'lobbying' to understand it, though.)