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Judges Debate Patents and If New Software Makes a Computer a "New Machine"
First time accepted submitter ectoman writes "A third party steps into a financial transaction to make sure all parties exchange funds at the same time and as expected. Can you patent this process? What if the third party is a computer? Rob Tiller, vice president and general counsel for Red Hat, details a recent court ruling on this very matter—one that has critical implications for the future of software patents, and one that divided the judges involved. Tiller writes that: 'The judges mostly agreed that the idea of managing settlement risk with a third party was abstract such that by itself it could not be patented. They differed, though, on whether using a general purpose computer for managing settlement risk meant that the patents avoided invalidity based on abstraction.' Interestingly, some judges suggested that a computer becomes a 'new machine' every time it loads different software."
1.Make it so that every time you load a new piece of software you invalidate the license of every other piece of software in an endless recursive loop.
2.????
3.Profit
4.goto 1
If we can slap 'on a computer' onto an old idea to patent it, can we slap on another 'on a computer' to patent it for virtual machines?
As much as I hate trivial patents in any field, I must admit that when I wipe windows off a pc and put debian on it, it sure feels like a new machine...
---- MISSING MISCELLANEOUS DATA SEGMENT --- [sigdash] trolololol
The computer is a new machine many times every picosecond as the data in the registers change, the data in ram changes, the data on the hard drive changes, the data flowing through network interfaces changes, etc...
Since the computer is *new* billions, if not trillions of times a second, then software doesn't make it unique.
Yet again, the clueless making decisions on things they cannot comprehend.
Is that they do not have to understand the technical stuff. Patent Judges are the reason for the problem. If they were really qualified, they would not have a low-paying federal job.
You are thinking of a Patent Examiner, not a "judge". These are two very different governmental positions.
I know I'll be flamed for this because everyone here is against software patents, but...
The distinction between a physical machine and a physical machine running software is somewhat pointless. Almost any software can be converted into a physical machine. Using a hardware H.264 encoder/decoder or a hardware crypto card is really no different from doing those things in software. If you want to make a distinction between physical objects and software for patent purposes, the logic part of computers needs to be considered software despite the fact that it's been manifested as a physical object. But general purpose computers running software aren't any different than purpose-built computers executing the same logic in hardware.
What the judges need to understand is that fundamentally, people are general purpose machines. Without any training at all, people are not capable of solving many problems. However, people can solve all sorts of problems based on what you teach them. Sure, you aren't going to be able to get a bushman in the Serengeti to be able to build the Apollo but, the potential is there given enough training. If that same bushman were to go to school and eventually graduate from college, they would be just as capable as anybody else. So how is receiving training through college or a technical school any different than a computer receiving a new set of instructions on how to solve a particular problem?
Computers only run algorithms (which aren't supposed to be patentable). They follow a set of instructions step by step and can't do anything that you and I can't do with a pencil and piece of paper. (They just can do it a lot faster.)
Of course, the beauty of computers is that they only do what you tell them. When they don't do what you want, it is still your fault since you didn't provide the instructions you thought you did. ;-)
They are, of course, right. An algorithm is conceptually the same as a description of a machine for executing that algorithm, whether you draw logic gates to execute your algorithm, or solder together transistors, or write Python.
As a mathematician working on algorithms right now, I say they are right.
However.
Algorithms shouldn't be patentable, no matter how they are represented. But that's a political decision, not a technical one.
They are both the same in functionality and somewhat in implementation, only hardware is faster, more parallel but limited in functionality. Whereas software is slower, less parallel but has vastly more functionality than hardware.
35 USC 101 requires that a claimed invention be directed to patent eligible subject matter: a process, machine, article of manufacture, or composition of matter (it also requires that the invention is useful). The courts have decided that these categories are very broad, but don't include "abstract ideas" (though that term is never defined), laws of nature, or natural phenomena.
If the claimed invention passes that low threshold for 101, 35 USC 102 requires that the invention must be new or novel. That's a higher bar, but not a huge one - if I'm the first person to make a red car and claim that in a patent application, that's new, even if blue cars existed.
If the claimed invention passes that threshold, then 35 USC 103 requires that the invention must be nonobvious. The red car is obvious if blue cars existed, even if no one has ever made a red car before.
So, for example, if some piece of software causes a computer to paint the screen in red paisley and that's never been done before, it's new... but it's obvious and still patent ineligible.
The problem is when these get confused or conflated into a single requirement, because obviousness and novelty require evidence, while subject matter eligibility does not. And so, you get cases like CLS or Bilski where the judges want to invalidate the patent because it's stupidly obvious, but they have no evidence on the record... so they declare it an abstract idea and invalid. In particular, here, the judges started carving out everything from the patent claim that made it non-abstract, declaring it irrelevant, until the only thing left was abstract. The outcome may be the right one, but it's for the wrong reason - it's like finding a murderer guilty because you hate his face. Maybe he was actually the murderer, but you're finding him guilty for the wrong reason.
Someone needs to slap the cowards in Congress to clarify this w.r.t. a "general-purpose machine".
Merely shoving some algorithm that is done by hand onto a computer is nothing novel. This isn't to say a particularly clever and non-intuitive software implementation couldn't be patented. But just doing it in software is not novel; it is obvious.
Software is indeed a virtual -- and specialized -- machine -- that is the idea behind computers as "generel-purpose machines". But not in the legal sense driving patents: novel and non-obvious innovation.
I keep recommending these rules:
1. If it's already being done in the real world, doing it on a computer is not patentable per se.
2. Doing a simulation of a real-world item is similarly not patentable per se.
3. Doing something wirelessly formerly done over a network, or remotely formerly done locally, or on a lil' phone or tablet or tricorder, is also not patentable per se.
4. This is not to say particularly clever implementations (the "machine" part of "virtual machine") could not be patented.
There, follow those rules, cowardly Congress, and you protect patentable innovation while eviscerating a ton of current patent problems.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Reading this story makes me feel like a new man. Those bills? You'll have to track down the old guy if you want them paid.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
If loading software turns a general-purpose computer into a new machine, the patent for that "new machine" should include all the internal details to make it work, particlularly the source code. Then if somebody else implements the same concept with different source code and different algorithms, they made a different machine so it's not infringing.
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There is inferior bacteria on the interior of your posterior.